Criminal Law

CA5: Statutory requirement to investigate child abuse allegations promptly is not exigent circumstances

Posted on July 30, 2008
State child protection statute that requires that investigations be done promptly does not ipso facto become exigent circumstances for an entry into a home. Gates v. Texas Dep't of Protective & Regulatory Servs., 2008 U.S. App. LEXIS 15947 (5th Cir. July 28, 2008): We can first easily dispose of any contention that the Texas Family Code's requirement that TDPRS undertake a "prompt" investigation somehow exempts the defendants' actions from constitutional scrutiny...

FL5: Reasonable mistake of fact doesn't void stop

Posted on July 30, 2008
Officer's reasonable error of fact about window tint did not void the stop. State v. Wimberly, 2008 Fla. App. LEXIS 11440 (Fla. App. 5th DCA July 25, 2008): If an officer makes traffic stop based on a mistake of fact, the court must determine whether the officer's mistake of fact was reasonable...

While one affidavit misstated quality of informant, SW was justified under second affidavit

Posted on July 30, 2008
Affidavit for search warrant was supported by two affidavits, and one was defective for stating that a CI was actually a concerned citizen. While "troubling," it was not reversible error because the other affidavit provided probable cause, too. State v...

IL: Hot pursuit: Violation of neighboring state's hot pursuit law does not mandate exclusion of evidence

Posted on July 30, 2008
Hot pursuit of a drug offender from Chicago into Illinois did not require suppression of anything from the Indiana arrest in violation of Indiana law in an Illinois prosecution. People v. Galan, 2008 Ill. LEXIS 639 (July 24, 2008), revg People v. Galan, 367 Ill...

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Record supported abandonment of motel room on checkout day

Posted on July 29, 2008
Evidence supported the conclusion that defendant had abandoned the motel room he was in. It was checkout day, and he was seen running with a suitcase away from it, and the manager gave chase, among other things. In addition, the first entry produced nothing...

E.D. Ark.: Hudson essentially means knock-and-announce violation is irrelevant

Posted on July 29, 2008
Defendant's knock-and-announce claim would fail as a matter of law under Hudson, so the court will not even address it. United States v. Taggart, 2008 U.S. Dist. LEXIS 56425 (E.D. Ark. July 8, 2008).* In plaintiff's § 1983 case against the police for an alleged excessive search of his house, taking the evidence in the best light possible, the police lawfully conduct a protective sweep...

Mistake of law as to traffic offense voided stop

Posted on July 28, 2008
Officer's mistake of law as to applicability of some state vehicle equipment laws to a vehicle registered in another state was not reasonable, so the stop was unjustified. Motion to reconsider granted. United States v. McHugh, 2008 U.S. Dist. LEXIS 55792 (E...

IL: DUI qualifies for hot pursuit under Santana and not Welsh because DUI was jailable

Posted on July 28, 2008
Hot pursuit of a DUI suspect (a class A misdemeanor) justified entry into the defendant's home. This situation is like Santana, and Welsh is distinguished because it involved a fine-only offense, not a jailable offense. People v. Wear, 2008 Ill. LEXIS 636 (July 24, 2008): Here, we see little relevant difference between this case and Santana...

NM reaffirms that its SI rule does not follow federal rule

Posted on July 28, 2008
Officer's viewing of a loaded shotgun in a car on high school grounds was an exigent circumstance to enter the car and seize the gun. The search could not be justified as a search incident. State v. Rowell, 2008 NMSC 41, 2008 N.M. LEXIS 389 (June 26, 2008): [*19] In Gomez, this Court rejected a related but analytically different federal bright-line rule that condones warrantless probable cause searches of automobiles at any time or place, even if there is no rational basis for believing that taking the time to apply for a search warrant would compromise any legitimate law enforcement or public safety interests...

Resolving tension between Wallace and Heck

Posted on July 28, 2008
Plaintiff's claim arose with his arrest under Wallace v. Kato and was not barred by Heck v. Humphrey. Wallace applies even though all the facts occurred before it was decided. (The court also discusses the tension between Wallace and Heck.) Kamar v. Krolczyk, 2008 U...

Allegation of hitting plaintiff in the face while handcuffed states an excessive force claim

Posted on July 27, 2008
Plaintiff's claim that he was hit in the face with handcuffs while already handcuffed stated a claim for excessive force. Torres-Caraballo v. Municipality of Yauco, 2008 U.S. Dist. LEXIS 56166 (D. P.R. July 23, 2008)* (Plaintiff here did not even respond to the defendant's motion to dismiss, and the motion was still denied...

CA2: Passenger has REP in his bag in the passenger compartment

Posted on July 27, 2008
Defendant passenger in a car, whose bag was right behind him in the car, had an expectation of privacy in the bag. His consent to search was valid. United States v. Sparks, 2008 U.S. App. LEXIS 15634 (2d Cir. July 24, 2008) (unpublished).* Defendant had no reasonable expectation of privacy against police entry into a common hallway shared with others...

D.Neb.: Seizure of defendant's bag off a bus was seizure of the person without reasonable suspicion

Posted on July 26, 2008
Seizure of defendant's luggage off an bus was an interference with his freedom of movement and was a seizure of the person. United States v. Alvarez-Manzo, 2008 U.S. Dist. LEXIS 55662 (D. Neb. July 3, 2008): With respect to the first factor the evidence supports the defendant's contention that the officers detention of the luggage significantly impacted the defendant's freedom of movement...

MT: Screaming woman inside was exigent circumstance

Posted on July 26, 2008
Officers responding to a domestic dispute had exigent circumstances to enter defendant's trailer because of a screaming woman inside. Alternatively, the trial court's finding of some form of announcement was supported by the record. State v. Hill, 2008 MT 260, 2008 Mont...

OH9: Dog sniff that took a minute and occurred during the checking of defendant's license was valid

Posted on July 25, 2008
Dog sniff conducted by second officer who immediately arrived at a traffic stop and took only a minute was valid. State v. Barbee, 2008 Ohio 3587, 2008 Ohio App. LEXIS 3039 (9th Dist. July 21, 2008): [*P14] This Court has determined that the traffic stop in this case was justified by the trooper's reasonable suspicion that Mr...

CA9: Defendant was not detained when he refused to stop for officer; defendant's threat to "kick your fuckin ass" led to real stop

Posted on July 25, 2008
The basis for defendant's traffic stop was unlikely, so the stop probably was unlawful, but defendant did not stop; he drove to his house and got out of the car. The officer stopped and followed. The defendant turned and said "I'm gonna kick your fuckin ass...

CA3: Mistaken stop not unconstitutional when defendant provides false ID

Posted on July 25, 2008
Officers were looking for a parole violator, and they had information from a CI that he was driving a particular car. That information proved to be wrong, but the person stopped gave a false ID when he was stopped. The stop would not be suppressed because, although mistaken, it was not unconstitutional [not to mention the independent crime of providing the false ID]...

Consent to search computer hard drive waived attorney-client privilege in contents

Posted on July 24, 2008
Defendant corporation's voluntary disclosure of a computer hard drive by a consent search which it permitted the government to copy was a waiver of attorney-client privilege in the hard drive. United States v. General Maritime Management (Portugal) L...

Victim and his attorney were citizen informants and presumptively reliable

Posted on July 23, 2008
Affidavit of child abuse that came from the attorney for the victim and the victim was sufficiently detailed to show probable cause. They were also citizen informants. State v. Scholes, 2008 ND 146, 2008 N.D. LEXIS 145 (July 21, 2008).* The affidavit for the search warrant here was so lacking in probable cause that official reliance on it was not reasonable under Leon...

W.D.Pa.: Conclusory allegation that NCMEC confirmed image was child porn violates Fourth Amendment

Posted on July 23, 2008
Deferring a child porn determination to the police or NCMEC violates the Fourth Amendment under Shadwick. United States v. Diyn, 2008 U.S. Dist. LEXIS 54910 (W.D. Pa. July 18, 2008): It cannot be disputed that a magistrate or similar judicial authority, not NCMEC or a police officer, must determine the presence of probable cause in an application for a search warrant...

CA11: Seizing plaintiff to get a piece of paper with an officer's license number on it was without reason to believe any crime occurred

Posted on July 23, 2008
Officers' conduct in blocking in plaintiff's car and grabbing her arm to take away a piece of paper with an officer's license number on it was a seizure, and there was no reasonable suspicion for the stop. The officers were allegedly protecting an undercover officer's identity in case of retaliation...

AL: Affidavit was so deficient the good faith exception did not apply

Posted on July 23, 2008
Affidavit for search warrant was so lacking in probable cause that the officer could not rely on it, so the the good faith exception did not apply. Here, the officer who executed the search warrant was the one who wrote the affidavit and applied for it...

CA8: Right of confrontation does not apply at a suppression hearing

Posted on July 22, 2008
The right of confrontation does not apply at a suppression hearing. The officer that actually stopped the defendant was not called as a witness by the government, so hearsay was admissible about the cause of the stop. United States v. Thompson, 2008 U...

Motel clerk's request for assistance in making sure room was clear justified a plain view

Posted on July 22, 2008
Motel clerk asked for police assistance in making sure that suspicious occupants were no longer in the room. The clerk opened the door with the police in tow, and that qualified for plain view of what was seen. Johnson v. State, 2008 Ga. App. LEXIS 857 (July 16, 2008) (over a dissent)*: On appeal, Johnson argues that the search of the room was unlawful because the officers did not have authority to enter the motel room when they had no search warrant, no consent to enter, or exigent circumstances that justified their warrantless intrusion...

CA9: Arrest in a purely civil dispute is settled law and there is no qualified immunity

Posted on July 22, 2008
Under plaintiffs' allegations, the defendant officers were dealing with a property dispute and not a situation of true exigency like a burglary report. The record also showed that the complainant was a "friend of the police." Gallagher v. City of Winlock, 2008 U...

Patdown was justified by defendant shoving hands in pants, and plain feel revealed drugs

Posted on July 21, 2008
Defendant's patdown revealed evidence by plain feel. He happened upon a search in progress, and, when a flashlight was shined in his face, he appeared confused and shoved his hands into his pants pockets. That led to a patdown. State v. Mullins, 2008 Ohio 3516, 2008 Ohio App...

NE: Field sobriety test must be based on reasonable suspicion

Posted on July 21, 2008
A traffic stop is probable cause for the stop, but reasonable suspicion of being under the influence is required for a field sobriety test. State v. Royer, 276 Neb. 173, 2008 Neb. LEXIS 115 (July 18, 2008) [F]ield sobriety tests may be justified by a police officer's reasonable suspicion based upon specific articulable facts that the driver is under the influence of alcohol or drugs...

Going to bathroom conditioned on consent to search was invalid

Posted on July 21, 2008
During a traffic stop, the defendant passenger asked to go to the bathroom. The officer conditioned going to the bathroom on consenting to a search. The consent was invalid. State v. Haynes, 2008 Ore. App. LEXIS 990 (July 16, 2008). Smell of burnt marijuana coming from a car during a traffic stop did not justify a search of every person in the car, applying the Washington Constitution...

N.D.Ill.: Police shooting of bystander not a Fourth or due process claim, except for the "shocks the conscience" test

Posted on July 21, 2008
Plaintiff's claim of being an accidentally shot bystander did not state a Fourth Amendment claim because he was not the person to whom the officers were attempting to apply force. Instead, the "shocks the conscience" standard (Rochin) applies, and plaintiff cannot meet it...

CA5: Alleged CI was really a victim so a lower threshold applies

Posted on July 21, 2008
Defendant did not show a sufficient issue of fact to get a suppression hearing. The parties offered their versions of events, and defendant's version was more a challenge to the scope of Belton. Caller ID identified the caller, and he claimed to be a crime victim, not a CI, so a lower standard of justification is applied to him...

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