Criminal Law

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Posted on September 17, 2008

KS: Possession of cash on the person is not PC for a car search

Posted on September 17, 2008
Possession of cash is not probable cause for a vehicle search, but it is a factor to consider in the totality of circumstances. State v. Fitzgerald, 2008 Kan. LEXIS 463 (September 12, 2008). After going through all the factors of the totality and finding them weak: When the totality of all of these circumstances is considered, as it must be, we conclude that the State did not carry its burden of demonstrating the existence of probable cause to support Thatcher's initial search of the truck...

CA7: Defendant driving into the security permeter of a heavily armed nighttime search could be stopped

Posted on September 17, 2008
Defendant could be stopped when he was entering the security perimeter of a search just as a nighttime search was about to occur. Officers approached him with guns drawn and saw drugs in plain view. United States v. Jennings, 2008 U.S. App. LEXIS 19560 (7th Cir...

CA8: Murray's second prong cannot be read literally; redacting tainted information still left probable cause

Posted on September 16, 2008
"Although much of the [warrant] application was tainted and, therefore, not relevant to this analysis, the untainted portions nevertheless are sufficient to support a finding of probable cause. ... These circumstances show 'a fair probability that contraband or similar evidence will be found in the targeted place...

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CA11: Briefly tasering resisting plaintiff after warning was not excessive

Posted on September 16, 2008
Tasering plaintiff after he was repeatedly warned was justified because plaintiff was no cooperating in his arrest. Buckley v. Haddock, 2008 U.S. App. LEXIS 19482 (11th Cir. September 9, 2008) (unpublished)*: In the light of the undisputed facts established in the record, we conclude that Defendant's use of force in this particular situation was not outside the range of reasonable conduct under the Fourth Amendment...

IA: Arrest five weeks after defendant's driving offense was not pretextual to cause a productive search incident

Posted on September 16, 2008
Defendant's arrest five weeks after he was seen driving while barred under state law and the search incident that it occasioned was not shown to be pretextual. It was constitutional. State v. Christopher, 2008 Iowa Sup. LEXIS 125 (September 12, 2008): Christopher argues officers should not be allowed to "save up an arrest" in order to "conduct an otherwise illegal search under the guise of search incident to arrest...

CA11: GFE saved search warrant for house without probable cause

Posted on September 15, 2008
Good faith exception saved a search warrant that lacked probable cause for documents [at least the court decided probable cause] because there were no factual inaccuracies and the officer reasonably relied on it. United States v. Rodriguez, 2008 U.S. App...

IN: Search incident for driving on a suspended license violated state constitution

Posted on September 14, 2008
Search incident of vehicle for driving on a suspended license that produced drugs was invalid under state constitution because it was not calculated to recover evidence of driving on a suspended license. Baniaga v. State, 2008 Ind. App. LEXIS 2013 (August 6, 2008): We conclude that Officer Ball's search of Baniaga's vehicle was not reasonable in light of the totality of the circumstances...

No expectation of privacy in a call to victim

Posted on September 14, 2008
Defendant called his alleged victim while police and a social worker were there. She put it on speakerphone and they recorded it. He had no expectation of privacy in the call. Bankston v. State, 2008 Miss. App. LEXIS 540 (September 9, 2008).* Officer lacked probable cause for a blood draw after a fatal accident because there was no objective evidence that defendant was intoxicated...

MA: Search incident 30+ minutes after arrest was not contemporaneous under Chimel and Belton

Posted on September 13, 2008
Massachusetts holds that the comtemporaniety requirement of the search incident doctrine requires that the search occur reasonable close to the time of the arrest. Where the search of a bag on the defendant was more than 30 minutes after the arrest, it was not contemporaneous...

OH12: Officer walking up to an illegally parked car is not a stop

Posted on September 12, 2008
Officer walking up to an illegally parked car is not a stop. State v. Good, 2008 Ohio 4502, 2008 Ohio App. LEXIS 3831 (12th Dist. September 8, 2008).* Officer received a tip in-person about a man with a gun, and the officer approached a group the man was in, and they disbursed...

D.Mass.: Communal living can create an expectation of privacy

Posted on September 12, 2008
The facts of a communal living arrangement may be that of a home sufficient to give a person standing in a common area. The court has to look to the realities of the living arrangement. United States v. Werra, 2008 U.S. Dist. LEXIS 68790 (D. Minn. September 11, 2008): The parties have not identified, and I have not found, any reported decisions that have, with sustained reasoning, expressly examined the distinction between traditional family homes and multi-unit apartment buildings...

Frisk can occur with a traffic citation without arrest

Posted on September 11, 2008
Officers had RS for a frisk associted with a traffic stop but before the frisk a bag of drugs fell out of the defendant's sleeve. Then, the search incident doctrine applied. United States v. Howard, 2008 U.S. Dist. LEXIS 68166 (N.D. W.Va. September 8, 2008)...

Seizure occurred when defendant was ordered to put hands on car

Posted on September 11, 2008
A seizure did not occur here until until defendant was ordered to put his hands on the car. A momentary detention to talk to a suspect is not a stop. United States v. Terril, 2008 U.S. Dist. LEXIS 68280 (E.D. Pa. September 9, 2008)*: Accordingly, at the earliest, the seizure of Defendant occurred when the officers ordered the three individuals to place their hands on the car, and Defendant moved to do so...

CA7: Jurisdictional limits of Rule 41(b) is not a constitutional mandate

Posted on September 11, 2008
USMJ's violation of jurisdictional limitations of Rule 41(b) did not warrant suppression of evidence because it is not a constitutional requirement. Here, the USMJ sought ISP information out of state, and that was permitted by 18 U.S.C. § 2703(a). United States v...

OH5: Arguably pretextual stop was still objectively valid

Posted on September 10, 2008
Defendant was stopped for pulling to the curb without signaling, and this provided an objective basis for the stop, albeit arguably pretextual, that produced a plain view of rocks of crack on the floorboard. State v. Brunner, 2008 Ohio 4519, 2008 Ohio App...

VT: PBT is a search

Posted on September 09, 2008
Portable breath test is a search. Here, there was reasonable suspicion for it because defendant was 50 miles off his stated course and apparently under the influence. State v. McGuigan, 2008 VT 111, 2008 Vt. LEXIS 107 (August 14, 2008).* Defendant was validly stopped for trespassing, and the officer could ask him about drugs without violating the Fourth Amendment or state constitution...

Mere typo in affidavit immaterial where address in warrant is correct and the officer was at the correct address

Posted on September 09, 2008
Typographical error (4311 v. 4511) in affidavit was just that. There was a photograph of 4511, the officer had been to 4511 with the CI, and there was no 4311. This was in handwritten additions made to the affidavit at the request of the magistrate after the officer expanded on the showing of probable cause...

NC: Reasonable suspicion is required for a traffic stop

Posted on September 08, 2008
At least reasonable suspicion is required for a traffic stop (surveying the cases). State v. Styles, 2008 N.C. LEXIS 685 (August 27, 2008). There was no apparent authority for an owner of premises to consent to a duffle bag of a guest. When she said it was somebody else's, the officers were on notice...

ND: Community caretaking function cannot apply to houses, but emergency exception does

Posted on September 08, 2008
Community caretaking function cannot be used to enter a house, (noting that Cady involved a car). The emergency exception would apply instead. State v. Gill, 2008 ND 152, 2008 N.D. LEXIS 158 (August 28, 2008): [*P20] We have said that the emergency exception may be applied when the following requirements are met: (1) The police must have reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance for the protection of life or property...

TN: Overpowering smell of a meth lab created exigent circumstances

Posted on September 08, 2008
Police received a call from room 110 of a motel that there was a strong odor of a meth lab, so they came to the motel and found the smell coming from room 109, and it was overpowering, not just strong. Exigent circumstances justified the entry. State v...

Affidavit for search warrant did not support conclusion that evidence of money laundering would be found in some defendant's homes

Posted on September 07, 2008
Fact that some defendants might have been involved in money laundering did not lead to the conclusion that evidence would be found in the homes of other defendants. United States v. Orozco, 2008 U.S. Dist. LEXIS 67179 (D. Colo. July 17, 2008): While such evidence might suggest that 11538 Nucla was purchased with drug trafficking proceeds that had been laundered through various bank accounts, or that Defendants Evaristo, Martha, and Cynthia Orosco had engaged in money laundering, I find it would not "lead a prudent person to believe there is a fair probability contraband or evidence of a crime would be found" at this address...

Furtive movements in car justified officer opening door when he stopped it

Posted on September 07, 2008
Officer was permitted to open defendant's car door after pulling him over because of defendant's furtive movements. United States v. King, 2008 U.S. Dist. LEXIS 67351 (N.D. Ind. September 2, 2008): In sum, the circumstances of the traffic stop and the specific actions of the Defendant (unusual, furtive movement and refusal to obey the commands) formed a reasonable basis for Lichtsinn's belief that the Defendant was dangerous and may have possessed or was retrieving a weapon...

Airplane was subject of a stop on reasonable suspicion

Posted on September 06, 2008
Airplane stop at the Kent State University airport was justified by reasonble supported by reasonable suspicion of either drug or alien smuggling. It was more than a "ramp check" when six police cars with sirens blocked its path. It was, however, with reasonable suspicion, and then a drug dog was brought in...

CA4: Blanket suppression of records was unjustified

Posted on September 06, 2008
Blanket suppression of search for records was unwarranted. The critical records sought were fairly within the search warrant and should have not been suppressed. United States v. Srivastava, 2008 U.S. App. LEXIS 18817 (4th Cir. September 3, 2008), reversing United States v...

CA11: Atlanta Jail strip search case en banc; reasonable suspicion not always required before going into gen pop

Posted on September 06, 2008
Fulton County Jail strip search case en banc: Powell v. Barrett, 2008 U.S. App. LEXIS 18907 (11th Cir. September 4, 2008) (en banc), panel opinion Powell v. Barrett, 496 F.3d 1288 (11th Cir. 2007). Analyzing Bell v. Wolfish in detail, the court concludes that reasonable suspicion is not always required before putting arrestees into general population...

CA3: Border search of cruise ship cabins requires reasonable suspicion

Posted on September 06, 2008
Border search of a cruise cabin intrudes into an expectation of privacy, and it requires reasonable suspicion. [Following the weight of authority, but analyzing in detail on its own.] United States v. Whitted, 2008 U.S. App. LEXIS 18916 (3d Cir. September 4, 2008): We believe that these courts correctly recognize that the search of private living quarters aboard a ship at the functional equivalent of a border is a nonroutine border search and must be supported by reasonable suspicion of criminal conduct...

Arrest outside a building permitted a protective sweep inside

Posted on September 05, 2008
Officers investigating a shooting who arrested defendant could conduct a protective sweep of an adjacent building where the officers had facts that justified the conclusion that somebody could be there to "launch an attack" as in Buie. United States v...

CA4: Cellphone call to confederate inside created exigency

Posted on September 05, 2008
Defendant's cellphone call as he was being stopped with probable cause created exigent circumstances. The officers had no cause to go into the premises until they discovered he made a call to a confederate and that something was going on inside. United States v...

Defendant's disclaiming interest in the premises was a lack of expectation of privacy

Posted on September 04, 2008
Defendant disclaimed interest in the premises searched, which included its trash, in which he would have no expectation privacy anyway. United States v. Jones, 2008 U.S. Dist. LEXIS 66744 (E.D. Mo. May 21, 2008).* Defendant's search incident of his person was valid even though it occurred before formal arrest because of defendant's strange actions and informant's statement that was corroborated by the police...

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