Criminal Law

Exigent circumstances justified taking defendant's blood without warrant

Posted on February 12, 2008
Warrantless taking of blood in a DUI with serious bodily injury case was reasonable because time was running, and the officer feared complete dissipation of alcohol in the blood, and the officer had plenty of probable cause to believe defendant was under the influence because he failed field sobriety tests and refused a breath test...

911 call of man with a gun required a response

Posted on February 12, 2008
911 call of man with a gun in an argument with a women required an immediate response, and the officer arrived at the scene finding people matching the description, and that justified action. United States v. Wooden, 2007 U.S. Dist. LEXIS 96208 (N.D. Ind...

Criminal case loss of search issue collaterally estops a § 1983 case over same issue

Posted on February 12, 2008
Plaintiff's losing criminal case where the search in his case was litigated and lost was collateral estoppel, applying Nebraska law to this issue. He argued that the state courts incorrectly decided his claim. James v. City of Omaha, 2008 U.S. Dist. LEXIS 9368 (D...

Update on Customs looking at laptops and cellphones

Posted on February 10, 2008
On 2/8 is this post: Customs now entering laptops and cellphones, originating with a Washington Post article. This is being picked up elsewhere on the Internet, and then, today, is a reference to the TSA Blog distancing itself from this story: It's Customs, not TSA...

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Search of defendant miles away from the premises described in the warrant was unauthorized

Posted on February 10, 2008
Reading the warrant as a whole, it was unreasonable to search the defendant miles away from the place described in the warrant. United States v. Young, 2008 U.S. App. LEXIS 2846 (10th Cir. February 5, 2008) (unpublished): We acknowledge the possibility that the use of the term "premises" in the command line was boilerplate, and that the omission of Young from the command line was a mere oversight on the part of the Utah judge...

Resisting conviction not collateral estoppel to excessive force claim

Posted on February 10, 2008
Resisting arrest conviction does not collaterally estop an excessive force claim. Lamond v. Maher, 2008 U.S. Dist. LEXIS 9078 n. 1 (S.D. Ind. February 5, 2008): The defendants also argue that Lamond is collaterally estopped by the outcome of the criminal prosecution--the outcome being that Lamond was convicted based on his plea of guilty--from pressing his civil rights claims here...

OH reaffirms that minor misdemeanor arrest does not justify a search of the person

Posted on February 10, 2008
Minor misdemeanor arrest does not justify a search of the person in Ohio. State v. Golly, 2008 Ohio 447, 2008 Ohio App. LEXIS 407 (8th Dist. February 7, 2008): [*P16] As recognized by one court, "A violation of the open-container statute, R.C. 4301...

Portable backscatter technology (ZBV) and drug detection

Posted on February 09, 2008
We have all heard of backscatter technology, technically known as Z Backscatter, first used at ports and border crossings for essentially x-raying trucks and railroad cars looking for dirty bombs, human cargo, or contraband. But, the manufacturer's website shows it used for packages and suitcases, "personnel inspection," and at airport entry points...

Freezing premises pending arrival of search warrant was valid

Posted on February 09, 2008
Freezing the premises and a protective sweep pending arrival of a search warrant were valid. Officers found a staircase hidden in a closet, and they went up the stairs and found an open window and things that suggested a gun might have been tossed out the window...

Do your suppression argument in full at the trial court, or you default

Posted on February 09, 2008
A lesson on getting your argument right: Inventory search issue was not fully explored at the suppression hearing, and the defendant made it clear to the trial court that the real issue was the length of detention after stop under a noise ordinance led to the officer finding the driver without a valid license...

Ubiquity of school resource officers requires remand for determination of what this one's function was: cop or school official?

Posted on February 09, 2008
The ubiquity of school resources officers led the Tennessee Supreme Court to remand a case for a determination of just what the officer's role was at this school: school official or cop? [In school search cases in general, this case might prove to be significant because it asks the right questions...

IL parolees are in the same position as CA's in Samson; anonymous tip supported search

Posted on February 09, 2008
Illinois holds that its parolees are in the same position as California's in Samson. Here, police received an anonymous unsupported tip that appellant was in possession, so they conducted a search. Trial court suppressed, but the court of appeals reversed (People v...

Customs now entering laptops and cellphones

Posted on February 08, 2008
An article in yesterday's Washington Post reveals that Customs is entering citizen's laptops and cellphones to look for anything that they want. In short, customs searches are no longer confined to luggage, or the person, as the case may be. See Ellen Nakashima, Clarity Sought on Electronics Searches / U...

Stop was justified, but it did not evolve into justification for a frisk

Posted on February 08, 2008
While defendant's stop was based on [tenuous] reasonable suspicion, the officer's detention thereafter was unreasonable because there was no showing of justification. Grandberry v. State, 2008 Ga. App. LEXIS 143 (February 7, 2008): Meanwhile, the police were detaining Grandberry based solely on the word of the complainant, whose identity could not be confirmed and whose reliability had become an issue...

Are the police "unbiased witnesses"? Apparently not.

Posted on February 08, 2008
In a rare statement, a U.S. District Court holds that police officers are not universally unbiased witnesses, in the course of finding no probable cause for defendant's search. United States v. Morse, 2008 U.S. Dist. LEXIS 8485 (E.D. Wis. January 4, 2008): To the contrary, given human nature, the fact that Cunning had no criminal record and the fact that there is no evidence that Cunning had committed any crime on the evening in question would suggest it to be more likely that Cunning would make certain that he stopped at the intersection, knowing full well that he was being followed by the officers...

Pepper spray and handcuffs for a resisting plaintiff was reasonable

Posted on February 08, 2008
"Here, faced with a suspect actively resisting during the course of a valid Terry stop and pat-down, the officers' use of physical force, including pepper spray and then handcuffs--in that order and after repeated warnings to Fuller--was, in the Court's view, an objectively reasonable response...

FBI wants everybody's biometric information

Posted on February 08, 2008
In the next step to eliminating all vestiges of privacy in America, in an effort create "One Nation, Under Surveillance," the FBI wants palm prints, eye scans, tattoo mapping, on CNN.com, not just fingerprints. The government is seeking a $1B contract for the database, and it is not limited to criminals...

"Lawyering up" does not prohibit a police request for consent

Posted on February 07, 2008
Defendant invoked his right to remain silent, but a request for consent after that is not prohibited. State v. Cummings, 2008 N.C. App. LEXIS 198 (February 5, 2008): After Defendant invoked his right to counsel, interrogation ceased. Agents did not ask any further questions about the robbery or Mr...

Heck bar not apparent on the face of the record, so dismissal inappropriate

Posted on February 07, 2008
For Heck bar to apply for a motion to dismiss, it must appear on the face of the record that the search claim collaterially attacks the conviction. Since this did not, it was improper to dismiss without discovery and further development of the claims...

No expectation of privacy in a box shipped to an alias

Posted on February 06, 2008
An ABF employee was suspicious of cardboard boxes that were too heavy for their purported contents, and he cut a hole in the box, saw another hard box inside, and smelled fabric softener. The police were called and brought a drug dog which alerted on the box...

Two cases on "apparent authority" to consent

Posted on February 05, 2008
There was no apparent authority to consent to search of the other half of a mobile home that was divided by a wall with a separate door. There was no common authority, and that was what was apparent. State v. Kuhnhausen, 2008 Ga. App. LEXIS 126 (February 4, 2008)...

Car in driveway not per se subject to search; PC always required

Posted on February 05, 2008
Defendant's car parked in his driveway could not be searched because there was no probable cause, citing, inter alia, Coolidge. United States v. Smith, 2008 U.S. Dist. LEXIS 7486 (D. Mass. February 1, 2008): At least five Circuit Courts have held that the motor vehicle exception applies even when a car is parked on a private driveway...

Search of a Blackberry as incident to arrest requires more briefing

Posted on February 05, 2008
Defendant came in to be arrested and brought a backpack, and inside was a Blackberry, which the officers searched and seized the "contacts" list. The court required further briefing of the issue of access to the Blackberry. The USMJ denied the motion to suppress the contents of the Blackberry, but the USDJ wants further briefing...

"No, you can check me" in response to a request to frisk is consent

Posted on February 04, 2008
Frisk was by consent. "The district court found that Miles consented to the search when, upon being asked whether he had any weapons, he answered, 'No, you can check me,' and put his hands in the air." United States v. Miles, 2008 U.S. App. LEXIS 2352 (2d Cir...

Defendant arrested 30-60' from car was not a "recent occupant" under Thornton

Posted on February 04, 2008
Defendant was arrested 30-60' away from the car he had been driving for no DL, and he did not qualify as a sufficiently recent occupant under Thornton to justify a search incident of the car. A.T.P. v. State, 2008 Fla. App. LEXIS 1059 (Fla. 2DCA February 1, 2008): We conclude that the facts of the present case as outlined above make it distinguishable from Thornton...

New article: "The iPhone Meets the Fourth Amendment"; or, search incident of cellphones run amok?

Posted on February 03, 2008
We already see search incident of the contents of cellphones, something that I disagree with, because, once the cellphone is out of the hands of the defendant, there is little that can be done to alter its stored electronic information. Sure, some "early" (pre-2004) phones may have a limited memory for incoming calls (say, 30 numbers), and some later incoming calls may erase the earliest ones in the queue...

NJ: Conditioning search warrant on police determining probable cause after further investigation violated the Fourth Amendment

Posted on February 03, 2008
A judge issued a search warrant for an apartment in a multiple unit structure but required that the police further investigate which of two apartments was allegedly involved in criminality; he did not require that the police return with this additional, necessary information, but instead issued the warrant on the condition that it not be executed until that additional information was obtained...

Alabama gets one wrong and one right

Posted on February 02, 2008
Alabama finds defendant was free to leave when he was standing back at the patrol car and a second officer arrived with a drug dog. State v. Hale, 2008 Ala. Crim. App. LEXIS 4 (February 1, 2008).* Comment: Not one fact mentioned in the opinion supports the conclusion that the defendant would reasonably believe he was free to go...

Exclusionary rule does not apply to driver?s license revocation proceedings

Posted on February 02, 2008
Exclusionary rule does not apply to driver?s license revocation proceedings under the Fourth Amendment or the Kansas Constituion. Martin v. Kansas Dept. of Revenue, 2008 WL 268915 (Kan. February 1, 2008). A habeas action under 28 U.S.C. § 2241 does not lie to adjudicate a Fourth Amendment claim or any other of the merits of a state criminal case before the state case is disposed of...

Four people had expectation of privacy in storage unit of one

Posted on February 02, 2008
Four plaintiffs retained an expectation of privacy in a storage unit rented by one where they agreed to put their stuff there. Garcia v. Dykstra, 2008 U.S. App. LEXIS 2191, 2008 FED App. 0074N (6th Cir. January 24, 2008). Telling a suspect police would seek a search warrant if consent was not granted was not coercive because, if they have probable cause, they have the ability to get a search warrant...

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