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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

Enty into side yard to look through window was a search

Posted on May 07, 2008
Officer's entry onto defendant's side yard to look through the slats in the blinds in the window was a search not justified by any exigency under Brigham City. People v. Gemmill, 2008 Cal. App. LEXIS 676 (3d Dist. May 6, 2008): Defendant contends Deputy Gassaway conducted a search within the meaning of the Fourth Amendment when he walked around the perimeter of the home and looked through the side window...

Paying rent does not necessarily convert "common authority" into landlord-tenant relationship

Posted on May 07, 2008
Defendant stayed in the house of another person and he paid rent of $100 a month. While a landlord cannot consent to a search of a tenant under Chapman, this was not a traditional landlord-tenant relationship, and he let the other person have entry into his room when he was not there...

4th Cir. reverses on a Franks issue

Posted on May 07, 2008
The defendant succeeding in making his "substantial preliminary showing" under Franks that the officer omitted significant facts from the affidavit that undermined the probable cause because of an apparently illegal entry into the curtilage to gain the information that made it into the application for the search warrant...

Magistrate-lawyer with conflict of interest as to target of search not "neutral and detached"

Posted on May 06, 2008
The Iowa Supreme Court holds that a magistrate-lawyer with a conflict of interest in issuing a search warrant for an adverse party in a private case was not a "neutral and detached magistrate" under the Fourth Amendment. State v. Fremont, 2008 Iowa Sup...

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Officers' search defendant's car under consent to search residence exceeded scope of consent

Posted on May 06, 2008
Defendant consented to a search of his residence after police seaqrched his business under a warrant. They patted him down and took his car keys and searched his car, and that exceeded his consent. State v. Torres, 2008 Ohio 2090, 2008 Ohio App. LEXIS 1796 (6th Dist...

Accidental shooting of handcuffed suspect subject to reasonableness inquiry

Posted on May 06, 2008
A case "remarkably similar on its facts to that faced by the Fourth Circuit in Henry v. Purnell, 501 F.3d 374 (4th Cir. 2007)," involved a handcuffed arrestee who the defendant officer was attempting to Taser and shot with a Glock instead. Here, however, the arrestee died...

Passenger in a rented SUV lacked standing to contest search of vehicle

Posted on May 05, 2008
Court determines that a passenger in a validly stopped rented SUV had no standing to challenge the search of the vehicle which led to finding interior panels that had been tampered with, which, when opened, revealed meth. United States v. Resa, 2008 U...

Digging holes in the ground during execution of a search warrant for evidence of a 30 year old homicide was not unreasonable

Posted on May 05, 2008
Plaintiffs � 1983 claim failed as to digging holes on their property under a search warrant for evidence from a 30 year old homicide because it was reasonable to believe some of the evidence sought would be buried. Other interpersonal actions undertaken by the police in conducting the search were sufficient to survive summary judgment...

Pretrial detainee had no expectation of privacy in her outgoing mail

Posted on May 05, 2008
Pretrial detainee had no expectation of privacy in her outgoing mail because of the reduced expectation of privacy of inmates. Hawkins v. State, 2008 Ind. App. LEXIS 949 (April 29, 2008). Both defendants' statements they had permission to use the car searched was sufficient to confer standing...

Mistake of fact in running license voided stop

Posted on May 05, 2008
Officer's mistake of fact in transposing numbers on a license plate when submitting them to be run created a Fourth Amendment violation when the defendant's stop occurred. McDonald v. State, 2008 Del. LEXIS 205 (May 2, 2008).* Plain feel did not apply to a folded dollar bill that was touched and moved past in a search...

Likelihood of housing inspection searches were speculative, so preliminary injunction denied

Posted on May 05, 2008
A city rental housing inspection program was constitutional under the Fourth Amendment because there was a process for issuance of administrative warrants when the landlord would not consent. Stewart v. City of Red Wing, 2008 U.S. Dist. LEXIS 35958 (D...

Possible gun is not grounds for protective sweep; a sweep is aimed at locating people

Posted on May 05, 2008
Defendant was a police officer, so he "cannot reasonably argue that he was vulnerable in any way or did not understand the rights he was giving up. He was fully aware that he could force the officers to obtain a warrant before they searched his home, but he chose not to...

Posts late because of NACDL meeting; updating through Saturday and Sunday

Posted on May 04, 2008
Some posted; many more to come. I'm in NYC at an NACDL meeting, and, because it is of a limited run, I went to Thurgood this afternoon. Astounding wasn't the the word--tour de force is better. A one man play with Laurence Fishburne. It runs only through July 12th...

Sexual assaults of children is an exigent circumstance for their seizure and removal from the home

Posted on May 03, 2008
Repeated sexual assaults of plaintiff's children were exigent circumstances for their seizure and removal from the home. Canter v. Reeves, 2008 U.S. Dist. LEXIS 35667 (E.D. Mich. May 1, 2008): The Court finds that the factual circumstances underlying this case amounted to exigent circumstances...

TN: Parole search for no apparent reason is invalid

Posted on May 03, 2008
Suspicionless parole search of defendant's house after a traffic stop and a search of her car that produced nothing was invalid. Samson applies California law which is different than Tennessee law. State v. Turner, 2008 Tenn. Crim. App. LEXIS 321 (April 29, 2008)...

Written inventory is not required by a police department

Posted on May 03, 2008
Written proof of an inventory policy is not required for the state to sustain its burden of proving an inventory valid. State v. Chatman, 2008 La. App. LEXIS 619 (2d Cir. April 30, 2008) (Also, this specific issue was addressed to the trial court, so it was waived...

DoJ computer search protocol creates no Fourth Amendment rights

Posted on May 03, 2008
There is no higher standard for search of computer than anything else, and the DoJ computer search protocol carries no constitutional imprimatur. United States v. Burns, 2008 U.S. Dist. LEXIS 35312 (N.D. Ill. April 29, 2008). Administrative search that involved a breaking of a door was unreasonable under Colonade...

Expired tag on computer check is cause for a stop, even if erroneous

Posted on May 03, 2008
Running a publicly displayed license plate which comes back as expired, even though erroneous, justifies a stop. United States v. Crooks, 2008 U.S. Dist. LEXIS 35189 (D. Del. April 29, 2008): 31. That the information Officer Breslin obtained from the computer system tag check was later proven to be inaccurate does not render the stop illegal...

CA6: Officer lacked reasonable suspicion for stop, and trial court's finding of fact was clearly erroneous

Posted on May 02, 2008
Officer lacked reasonable suspicion for stop, and trial court's finding of fact was clearly erroneous. The fact he left a drug house and had handed something to another alone was not reasonable suspicion. United States v. Blair, Nos. 06-6036/6037 (6th Cir...

TN: Informant hearsay failed Aguilar/Spinelli because of lack of corroboration

Posted on May 02, 2008
Uncorroborated details left affidavit based on informant hearsay wanting, and probable cause was lacking. State v. Whittington, 2008 Tenn. Crim. App. LEXIS 320 (April 29, 2008)*: In the instant case, the informant was a member of the criminal milieu...

Implied consent is valid, and the need for advice as to consequences serves a purpose beyond consent

Posted on May 02, 2008
Implied consent is valid. The need for advice as to consequences serves a purpose beyond consent. State v. Dewitt, 2008 Ida. App. LEXIS 42 (April 29, 2008): Informing a suspect about the consequences of refusing an evidentiary test is not intended to be an opportunity for a defendant to withdraw his consent; rather, it is an administrative tool designed to increase the likelihood that the suspect will peaceably submit to testing that he has no legal right to refuse...

Strip searches of inmates moved within a jail are not unreasonable, without regard to the gravity of the crime

Posted on May 02, 2008
Strip searches of inmates moving from one part of the jail to another without regard to what the inmate is in for do not violate the Fourth Amendment. Jackson v. Herrington, 2008 U.S. Dist. LEXIS 34677 (W.D. Ky. April 28, 2008): Finally, in Sutton v...

Cellphone subject to search under automobile expectation, despite its containing personal information

Posted on May 01, 2008
Seizure and search of the contents of a cellphone, despite its high expectation of privacy, can be proper under the automobile exception. United States v. James, 2008 U.S. Dist. LEXIS 34864 (E.D. Mo. April 29, 2008): Judge Noce correctly that Meador had a reasonable expectation of privacy in the data contained in the cell phone...

CA10: Once it was obvious the wrong person had been arrested, continuing booking through a strip search violated the Fourth Amendment

Posted on May 01, 2008
It readily became apparent that plaintiff was not the person wanted on the arrest warrant when processing at the jail began and she had no tattos or moles as described in their paperwork. Nonetheless, they processed her, strip searched her, and mocked her when she was standing there naked and began lactating...

Corroboration of statements against penal interest saved warrant where no showing of basis of knowledge

Posted on April 30, 2008
Affidavit for search warrant did not show the informant's basis of knowledge, but the affidavit related statements against penal interest and the officer corroborate significant details. Thus, the officer showed probable cause. United States v. Evans, 2008 U...

Asking driver names of passengers and then asking passengers during a traffic stop was not unreasonable

Posted on April 29, 2008
During a traffic stop, the officer did not act unreasonably in asking the names of the passengers and then separately asking the passengers their names. After that, the driver consented to a search of the car, and each of the persons in the car consented to a patdown...

Halfway house resident was subject to search at any time

Posted on April 28, 2008
Halfway house resident is still in custody of the Bureau of Prisons and has no expectation of privacy in the halfway house. He agreed to searches when he entered the halfway house. United States v. Dixon, 2008 U.S. Dist. LEXIS 34044 (D. Kan. April 24, 2008)...

CA5: Search of defendant's car based on his nervousness was unjustified

Posted on April 27, 2008
Search of defendant's car after defendant was placed in the police car was not justified by any exigent circumstance or reasonable suspicion that a weapon or evidenc would be found, so the trial court should have suppressed. The nervous behavior testified to by the officer was insufficient to constitute a belief in a threat...

Suspected drug overdose justified a search of purse

Posted on April 27, 2008
Suspected drug overdose of a woman thrashing about on the floor of a restaurant justified a search of her purse when officers and EMTs arrived. Commonwealth v. McCarthy, 2008 Mass. App. LEXIS 443 (April 24, 2008). Defendant's stop and frisk was justified by reasonable suspicion on the totality of the circumstances, and the court of appeals erred in concluding otherwise...

All posts for 4/25 and 26 just disappeared

Posted on April 26, 2008
We're trying to find out why. More ASAP.

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