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Criminal Law

Fourth Amendment

Case updates with news and views on the law of search and seizure and arrest and detention, including the Fourth Amendment and state law.
By John Wesley Hall, Jr.

Post Frequency: 41.7/day

Last Entry: April 01, 2011 at 08:26:14

D.C. Cir.: Unzipping jacket was a search; bumping into a hard object and not searching at time violated Dickerson

Posted on June 25, 2008
A zipped jacket manifests an expectation of privacy in what is underneath so it is a search. Here, officers unzipped appellant's jacket to facilitate a showup. In the process, the officer bumped into a hard object but did not go futher, and defendant was moved to nearby spot for the showup...

Wife's private search was complete, so police could not exceed it

Posted on June 25, 2008
Defendant's wife's private search was complete so the officers could not exceed her private search. United States v. Starr, 2008 U.S. App. LEXIS 13305 (8th Cir. June 23, 2008): [T]he Supreme Court has recognized "that a third party's inspection of the contents of private books, papers, memoranda, etc...

Affidavit for search warrant did not reveal target and there was no showing that the issuing magistrate could tell it was the person he knew

Posted on June 24, 2008
Defense counsel was not ineffective for not challenging the USMJ as not neutral and detached where it could not be discerned from the search warrant affidavit that it referred to the defendant whom the judge knew. Flowers v. United States, --- F.Supp...

CA6: Nervousness and reaching under seat were not reasonable suspicion

Posted on June 24, 2008
Nervousness with reaching under seat alone were not sufficient for reasonable suspicion. The court analyzed at length the purported justification of the license plate light being out, which the court noted was working in the video of the stop, but still did not second guess it...

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CA9: NASA background check is not likely a "search" so preliminary injunction denied

Posted on June 24, 2008
A background check is not likely going to be found a Fourth Amendment search, so plaintiffs will not likely prevail on the merits. Therefore, a preliminary injunction is denied. Nelson v. NASA, 2008 U.S. App. LEXIS 13205 (9th Cir. June 20, 2008): C...

D. Kan.: Probable cause alone is not enough for inevitable discovery

Posted on June 23, 2008
Probable cause alone is not enough for inevitable discovery. United States v. Troxel, 2008 U.S. Dist. LEXIS 47540 (D. Kan. June 17, 2008): Based on a balancing of these factors, the court finds that it does not have "a high level of confidence that the warrant in fact would have issued...

Cert. grant: Arizona v. Johnson; patdown of passenger with RS he is armed but not committing any offense

Posted on June 23, 2008
SCOTUS granted cert today in Arizona v. Johnson, 07-1122. Issue: Whether, in the context of a vehicular stop for a minor traffic infraction, an officer may conduct a pat-down search of a passenger when the officer has an articulable basis to believe the passenger might be armed and presently dangerous, but had no reasonable grounds to believe that the passenger is committing, or has committed, a criminal offense...

General consent includes a locked toolbox

Posted on June 23, 2008
General consent to search a vehicle includes consent to search a locked toolbox the same as a trunk. Also relevant to consent is the defendant's failure to object. State v. Rathjen, 16 Neb. App. 799, 2008 Neb. App. LEXIS 132 (June 17, 2008).* Officers blocked the defendant's path with their car, and that was a stop...

IN: Knowledge driver has a suspended license does not justify stop of his car without knowing owner is driver

Posted on June 23, 2008
Knowledge that the owner of a vehicle had a suspended license does not justify a stop of the vehicle. Holly v. State, 2008 Ind. App. LEXIS 1258 (June 17, 2008): We agree with Wilkinson that a police officer's knowledge that the registered owner of a vehicle lacks a valid license, by itself, is insufficient to provide the officer with reasonable suspicion sufficient to permit an investigatory stop...

NC: Expired tag justifies a search incident

Posted on June 23, 2008
Defendant was arrested for driving on an expired license of a vehicle after a stop for a worn and tattered paper tag. That permitted a complete search of the interior. The rule as to vehicles is different that dwellings. State v. Carter, 2008 N.C. App...

IL again: Applying Caballes and Muehler together, inquiring about drugs did not unlawfully extend stop

Posted on June 22, 2008
Reading Caballes and Muehler together, the stop was not unlawfully extended. People v. Salinas, 2008 Ill. App. LEXIS 600 (June 18, 2008): Our supreme court was called upon to interpret and apply the Caballes and Muehler holdings in People v. Harris, 228 Ill...

GA: Search warrants are for things and places and things can move

Posted on June 22, 2008
Search warrant for package received at a mail drop was properly executed even though the package had been moved to defendant's car. Search warrants are for things and places, and things move. Ferguson v. State, 2008 Ga. App. LEXIS 676 (June 17, 2008): "[S]earch warrants are not directed at persons; they authorize the search of 'places' and the seizure of 'things,' and as a constitutional matter they need not even name the person from whom the things will be seized...

OH 5th: Search incident for speeding is proper

Posted on June 21, 2008
Ohio's Fifth District Court of Appeals holds that Virginia v. Moore permits a search incident for speeding 36 in a 25 zone. A CI had given the police information that defendant would be bringing drugs when he appeared[, and the state did not have to rely on corroborating the CI]...

Replevin action will not lie to recover property seized under a search warrant where the investigation remains open

Posted on June 21, 2008
In a replevin action, plaintiff was not entitled to recover property seized under a warrant were the police investigation remains open. This is "rightful possession" and replevin will not lie. Hicks v. City of Barberton Police, 2008 Ohio 2958, 2008 Ohio App...

While private search occurred, officer exceeded schope of private search by encouraging further searching

Posted on June 21, 2008
Defendant's boyfriend's search of computer disks was a private search, but the police expanded the private search by asking him to keep looking. People v. Wilkinson, 2008 Cal. App. LEXIS 929 (3d Dist. June 18, 2008): Although we find no California case on point, federal case law has held that police officers exceed the scope of a private search when they fail to confine their examination of the contents of computer discs to the discs the private searcher examined...

Consent to "look for drugs" permitted a dog sniff

Posted on June 20, 2008
Consent to "look for drugs" permitted a dog sniff. United States v. Vargas-Miranda, 2008 U.S. Dist. LEXIS 46747 (D. Neb. June 3, 2008): Finally, applying Eighth Circuit precedent and realizing that no damage was done to the car and none of the defendants made a contemporaneous objection to the manner of the officer's examination, a search of a vehicle that took about 34 minutes from the time of the consent to the finding of the package of heroin (Ex...

4th Cir.: Sending 50 officers to an adminstrative search states a claim for unreasonableness of conduct of administrative search, an issue for remand

Posted on June 20, 2008
In a regulatory search case where 50 officers showed up for the search, the Fourth Circuit holds that the record showed that there was a sufficient showing of a regulatory purpose in the search to support it as a regulatory and not criminal search. The court also held that a search of the office was permitted under the statute even though alcohol was not sold from there because that was an unnecessarily narrow reading of the statute...

SCOTUS had one case this Term: Virginia v. Moore

Posted on June 19, 2008
SCOTUS decided only one search and seizure case this Term: Virginia v. Moore (06-1082), 128 S. Ct. 1598, 170 L. Ed. 2d 559 (April 23, 2008), posted here. Three other cert grants are carried over to the next Term with argument dates: ? Arizona v. Gant (07-542), October 7th...

9th Cir.: Police officer had reasonable expectation of privacy in text messages on city rented two-way pager

Posted on June 19, 2008
The Ninth Circuit holds that police officer's text messages on city rented two-way pagers were subject to a reasonable expectation of privacy for alleged personal use after the city warned the officers that it would look at messages to determine why the number of text messages was so high and expensive...

D.D.C.: Arrests of protestors at second Bush Inaugural without probable cause

Posted on June 19, 2008
The D.C. District Court holds that the arrest of protestors at second Bush Inaugural was without probable cause. Motions for summary judgment of plaintiffs granted and defendants denied for rioting, conspiracy to riot, and parading without a permit. [The District's definition of "riot" is hardly the traditional definition...

Tampa Bay stadium entry consent search reaffirmed by 11th Cir.

Posted on June 19, 2008
The Eleventh Circuit grants rehearing in the Tampa Bay NFL stadium entry search case, a year after the original opinion (490 F.3d 820), and files a substitute opinion. The court holds that the NFL dictates the policy, and the policy leads to consent searches; the ticketholder does not have to enter if he or she refuses the search...

10th Cir. finds independent source from nearly continuous occurrence

Posted on June 19, 2008
The Tenth Circuit [somehow] finds an independent source in a tractor trailer cab search from a continuous occurrence after a dog sniff on the highway of the trailer during a traffic stop and license check, essentially holding that a lawful canine search [something not clear to me in the first place] cures all ills...

MA: Collateral estoppel requires mutuality of parties; codefendant's win of his suppression hearing does not preclude prosecution

Posted on June 18, 2008
Collateral estoppel in criminal cases requires mutuality of parties. Here, the codefendant's win of his suppression hearing that the state did not appeal does not preclude the prosecution from attempting to use the evidence against the defendant. While Massachusetts cases do suggest that mutuality is not required, the Supreme Judicial Court concludes that those cases do not apply to suppression hearings...

Consent to search for a person did not permit seizure of baggie in a shoe in a closet as plain view

Posted on June 17, 2008
Defendant's consent to search for his brother in the house did not support the finding of drugs and crack that were secreted. Here, the court recognized that secreting money in a "less secure neighborhood" was indicative of nothing. State v. Riley, 2008 Ohio 2896, 2008 Ohio App...

CA10: False arrest affidavit can support malicious prosecution claim under Fourth Amendment

Posted on June 17, 2008
The Tenth Circuit holds that a false affidavit for arrest can underlie a false arrest and malicious prosecution claim under the Fourth Amendment. Plaintiff showed sufficient facts to survive summary judgment, even against a claim of qualified immunity...

Officers had probable cause to search defendant's car after he ran past it in flight from the police

Posted on June 16, 2008
Defendant ran past his car in flight from officers and they had probable case. This was an exigent circumstance justifying a search of vehicle lest he get back to the vehicle and leave. State v. Neville, 2008 La. App. LEXIS 903 (4th Cir. June 4, 2008): In this case, the police officer was informed by the witness that the defendant was in route to the vehicle...

Seeking HIV test created acceptance of risk of disclosure to law enforcement under HIPAA

Posted on June 16, 2008
Defendant was charged with exchanging body fluids while HIV positive, and he challenged the release of medical information under state law and HIPPA. The Idaho Supreme Court held that the defendant assumed the risk of delivery to his HIV records to law enforcement when he sought the lab tests under HIPPA...

VT: Search of closed container incident to arrest requires exigent circumstances

Posted on June 16, 2008
Vermont prohibits search of a closed container seized from the person during arrest without exigent circumstances under its state constitution. Defendant was arrested for failure to pay a $21 fine, and he was subject to imprisonment. During booking, officers removed a velco sealed pouch from his person and searched it, finding cocaine...

OnStar� "panic button" call gave probable cause for a stop of a moving vehicle

Posted on June 15, 2008
OnStar� "panic button" call communicated to the police gave probable cause for a stop of a moving vehicle. When the officer got up to the vehicle, the license plate was obscured and that also justified a stop. When stopped, the driver was reaching under the seat...

Routine border search of laptop and CDs was valid

Posted on June 15, 2008
Search of computer and CDs at the border was justified as a border search without reasonable suspicion. Alternatively, there was reasonable suspicion based on defendant's criminal record with minors. United States v. Bunty, 2008 U.S. Dist. LEXIS 45985 (E...

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