Case Law Update: 2011-2014 Cumulative Edition

Holding: Even though home’s occupants had concealed weapons permits, this did not authorize Officers to conduct a no-knock entry of home to search for child pornography; the search warrant did not authorize no-knock entry and the concealed weapons permits did not create exigent circumstances.
U.S. v. North, 735 F.3d 212 (5^th Cir. 2013):

Holding: Gov’t failed to comply with the minimization protocols of the Wiretap Act when listening to drug-Defendant’s phone call with a friend; Gov’t listened to non-pertinent conversations for an hour and was not speaking to a member of the drug conspiracy.
U.S. v. North, 93 Crim. L. Rep. 711, 2013 WL 4516143 (5^th Cir. 8/26/13), opinion withdrawn 94 Crim. L. Rep. 153 (5^th Cir. 10/24/13):

Holding: Federal Wiretap Law, Title III, does not allow a judge to authorize interception of mobile phone calls when neither the phone nor listening post are within the court’s territorial jurisdiction. Note: The foregoing opinion was withdrawn on 10/24/13, and a new opinion issued which decided the case on different grounds, i.e., that Gov’t failed to follow the wiretap minimization procedures set out in the affidavit for the search warrant; Gov’t claimed they would only “spot check” conversations to ensure they did not turn to criminal matters, but Gov’t listened to a non-pertinent conversation for nearly one hour.
U.S. v. Cotton, 2013 WL 3329173 (5^th Cir. 2013):

Holding: Where motorist gave consent to search for luggage, this did not authorize Officer to search car in places where luggage could not be found.
U.S. v. Gray, 90 Crim. L. Rep. 619 (5^th Cir. 2/1/12):

Holding: The intrusiveness of having medical personnel conduct a proctoscopic examination of a suspect’s rectum was so great that a search warrant was not enough to make the search “reasonable” for Fourth Amendment purposes.
U.S. v. Macias, 2011 WL 4447888 (5^th Cir. 2011):

Holding: Firearm was found to be fruit of an unconstitutional search where trooper made a valid stop for failure to wear a seatbelt, but prolonged the stop by asking irrelevant and unrelated questions without reasonable suspicion of criminal activity.
U.S. v. Olivares-Pacheco, 2011 WL 456765 (5^th Cir. 2011):

Holding: Even though truck was dragging a bit of brush and was carrying six Hispanic passengers, there was not reasonable suspicion to stop it.
Bishop v. Arcuri, 2012 WL 752525 (5^th Cir. 2012):

Holding: At the time of officers’ no-knock entry into a residence suspected of being the site of the sale of small, retail quantities of methamphetamine, the risk of evidence destruction had not yet ripened into exigent circumstances sufficient to justify officers’ decision not to knock to announce their presence.
U.S. v. Shaw, 92 Crim. L. Rep. 701 (6^th Cir. 2013):

Holding: Even though police had a warrant to arrest a female suspect for trespass, where they arrived at the scene and there was no such house number and they knocked on a door, a woman answered, they saw scales in the house, and the woman let them in after they said they had a warrant, their actions in entering the house were unreasonable because they should have confirmed the correct address for the warrant and should not have lied to the woman about having a warrant (for an incorrect address).
G.C. v. Owensboro Public Schools, 93 Crim. L. Rep. 42 (6^th Cir. 3/28/13):

Holding: Using a cell phone on school grounds in violation of school policy does not automatically permit school officials to seize phone and search all its contents; 4^th Amendment requires reasonable searches, and any search must be related to the reason the phone was seized.
U.S. v. McCraney, 2012 WL 934020 (6^th Cir. 2012):

Holding: A district court did not clearly err in finding that officers lacked reasonable suspicion that a defendant and the driver of the vehicle in which the defendant was a passenger were armed or could have gained immediate control of weapons.
O’Neill v. Louisville/Jefferson County Metro Gov’t, 90 Crim. L. Rep. 270 (6^th Cir. 11/8/11):
Holding: Even though Defendants invited into their home an undercover officer, where he went outside and then invited in uniformed officers, the reentry violated the 4^th Amendment and was not justified under the “consent-once-removed doctrine.”
U.S. v. Johnson, 89 Crim. L. Rep. 789 (6^th Cir. 8/29/11):
Holding: A home’s temporary resident’s (divorcing husband who lived in wife’s mother’s house) objection to a search controls over the consent of a resident (wife and her mother) with a greater possessory or long-term interest in the home for purposes of Georgia v. Randolph, 547 U.S. 103 (2006).
State v. Hummons, 89 Crim. L. Rep. 540 (Ariz. 6/10/11) & U.S. v. Gross, 89 Crim. L. Rep. 540 (6^th Cir. 6/15/11):

Holding: Even though police discovered a valid arrest warrant for Defendant after unconstitutionally stopping and detaining him, this does not necessarily purge the taint of the illegal stop from evidence subsequently seized.
U.S. v. Warshak, 88 Crim. L. Rep. 339 (6^th Cir. 12/14/10):

Holding: The provision of the Stored Communications Act which permits the gov’t to obtain emails from internet service providers without a warrant violates 4^th Amendment.
White v. Stanley, 94 Crim. L. Rep. 747 (7^th Cir. 3/11/14):

Holding: Even though Officer smelled burning marijuana coming from a residence, this did not create “exigent” circumstances to make a warrantless entry under 4^th Amendment.
Huff v. Reichert, 94 Crim. L. Rep. 747 (7^th Cir. 3/10/14):

Holding: Defendant-driver was not “free to leave” when he told Officer he would like to go and Officer said (1) he could leave but would have to leave his car behind, and (2) that he’d be arrested because it is illegal to walk on a highway or abandon a car on a highway; this turned the traffic stop into an arrest because no reasonable person would feel free to leave.
U.S. v. Williams, 94 Crim. L. Rep. 41, 2013 WL 5314594 (7^th Cir. 9/24/13):

Holding: Even though police received an anonymous call to investigate a group of belligerent men outside a bar who were displaying guns, there was no reasonable suspicion to stop and frisk Defendant, who began walking away when police arrived; the situation was not “ominous” when police arrived, and the group was not displaying any guns; also, a group’s general behavior cannot support reasonable suspicion that one of its members is armed and dangerous; and even though this was a “high crime area,” that wasn’t significant given the weakness of the other facts.
U.S. v. Uribe, 92 Crim. L. Rep. 622, 2013 WL 514213 (7^th Cir. 2/13/13):

Holding: Even though Defendant’s car had a different color than the registration indicated and was out late at night, this did not provide reasonable suspicion to stop the car; “nothing suggests that a repainted vehicle observed at 2:00 a.m. is any more suspicious than onwile observed at noon.”
U.S. v. McMurtrey, 2013 WL 105787 (7^th Cir. 2013):

Holding: Defendant’s 4^th Amendment rights were violated where Gov’t received a “pre-Franks” hearing to explain discrepancies and contradictions in a search warrant affidavit without allowing Defendant an opportunity to respond.
U.S. v. Lomeli, 91 Crim. L. Rep. 126 (8^th Cir. 4/18/12):

Holding: Title III’s exclusionary rule required suppression of intercepts where investigators failed to attach to their wiretap application the names of the officer who made the application and the DOJ official who approved it; prosecutor’s application for a wiretap, which used boilerplate language and referenced documents that were not attached, was not a mere technical defect but rather violated a core requirement of the federal wiretap statute.
U.S. v. Aquino, 2012 WL 952778 (8^th Cir. 2012):

Holding: Officer exceeded Terry’s scope in lifting the defendant’s pant leg instead of conducting pat down.
U.S. v. Taylor, 88 Crim. L. Rep. 640, 2011 WL 561979 (8^th Cir. 2/18/11):
Holding: Officer’s writing of “misc. tools” on vehicle inventory form rather than itemizing the hundreds of tools in Defendant’s car spoiled the inventory search and rendered it unreaonsable under 4^th Amendment; drugs found must be suppressed; Officer’s actions in writing “misc. tools” and not following standard procedures for making a detailed inventory showed Officer’s purpose was investigatory rather than to create an inventory.
Patel v. City of Los Angeles, 94 Crim. L. Rep. 413 (9^th Cir. 12/24/13):

Holding: Ordinance that requires hotel owners to disclose their guest registry to police upon request violates 4^th Amendment.
U.S. v. Arreguin, 94 Crim. L. Rep. 306, 2013 WL 6124722 (9^th Cir. 11/22/13):

Holding: Even though a sleepy-looking person answered door of residence and said Officers could look around, their search violated 4^th Amendment because Officers may rely on the apparent authority doctrine only if the Officers reasonably believe the person they spoke to had actual authority to grant consent; here, the person who consented was only a house guest; Officers knew “virtually nothing” about who this person was and cannot proceed on an “ignorance is bliss” theory.
U.S. v. Grandberry, 93 Crim. L. Rep. 765, 2013 WL 5184439 (9^th Cir. 9/17/13):

Holding: Officer cannot conduct warrantless search of parolee’s residence unless Officer has probable cause to believe parolee resides at that residence; here, Parolee challenged search of his girlfriend’s apartment.
U.S. v. Lopez-Cruz, 93 Crim. L. Rep. 741, 2013 WL 4838908 (9^th Cir. 9/12/13):
Holding: Officer exceeded scope of Defendant’s consent to “search” or “look in” his cell phone when Officer answered an incoming call.
U.S. v. Sedaghaty, 93 Crim. L. Rep. 712, 2013 WL 4490922 (9^th Cir. 8/23/13):

Holding: (1) Where affidavit supporting warrant for search of computer was only to investigate suspected tax fraud, Agents exceeded scope of search warrant when they went through computer files to collect evidence of terrorist activity that Defendant cheated on his taxes to fund terrorist causes; and (2) Gov’t committed Brady violation where they failed to reveal that FBI had paid persons who testified against Defendant $14,000 in “financial assistance.”
U.S. v. Thomas, 2013 WL 4017239 (9^th Cir. 2013):

Holding: Gov’t’s failure to disclose full history of drug dog’s search skills was not harmless where dog had been evaluated as having only “marginal” skills in certification program; thus, his behavior in touching Defendant’s toolbox provided an insufficient basis to search toolbox.
U.S. v. Underwood, 2013 WL 3988675 (9^th Cir. 2013):

Holding: “Good faith” exception to exclusionary rule did not apply where affidavit submitted in support of a state search warrant for Defendant’s home failed to set forth sufficient facts to conclude that Defendant was a courier for a drug organization or that drug trafficking evidence would be found in the home.
U.S. v. Cotterman, 92 Crim. L. Rep. 721 (9^th Cir. 3/8/13):

Holding: Homeland Security agents must have reasonable suspicion of criminal activity before they conduct a forensic search of a laptop or other digital device when travelers bring them into the U.S. across the border.
U.S. v. I.E.V., 92 Crim. L. Rep. 275 (9^th Cir. 11/28/12):

Holding: Even though a drug dog alerted to a car near the border and the car’s occupants were “nervous,” this did not provide reasonable suspicion to stop and frisk occupants; the frisk of Defendant was the type of “general exploratory search for whatever evidence of criminal activity [police] might find,” which is prohibited under Terry.
U.S. v. Cervantes, 2012 WL 5951618 (9^th Cir. 2012):

Holding: Where Defendant who was stopped and arrested by police properly left his car parked by side of road in residential neighborhood, the subsequent impoundment and search of car by police was not justified under “community caretaker” exception to 4^th Amendment.
U.S. v. Budziak, 92 Crim. L. Rep. 82 (9^th Cir. 10/5/12):

Holding: Defendant was entitled to discovery of computer program FBI used to detect his child pornography on his computer because this was relevant to his defense that Defendant did not know he was sharing pornography or that the FBI may have overridden his shared settings.
U.S. v. Grant, 2012 WL 2086588 (9^th Cir. 2012):

Holding: Even though Officer relied on a search warrant to search Defendant’s home for a gun used in a homicide, where the affidavit for the warrant did not set out any plausible connection between the gun and Defendant’s home but was based on a speculative idea that a relative of Defendant may have taken the gun there, the search was unreasonable and the good faith exception of Leon did not apply.
U.S. v. Oliva, 2012 WL 2948542 (9^th Cir. 2012):

Holding: Electronic surveillance orders in case did not authorize Gov’t to use unlawful “roving bugs” on cell phones calls.
United States v. King, 90 Crim. L. Rep. 808 (9^th Cir. 3/13/12):

Holding: Uncorroborated “double hearsay” from tipsters of unknown reliability cannot give police reasonable suspicion to believe that a defendant is engaged in criminal activity.
Chism v. Washington, 89 Crim. L. Rep. 828 (9^th Cir. 8/25/11):

Holding: Even though Defendant’s credit card was used to pay for hosting fee for website that featured child pornography, this was not enough for probable cause for a search warrant to search Defendant’s home and computer where the IP address was hundreds of miles from house and the warrant affidavit contained other falsehoods and omissions.
Doughtery v. City of Covina, 89 Crim. L. Rep. 774 (9^th Cir. 8/16/11):

Holding: Where Defendant was charged with sexually touching children, this alone did not justify searching his house for child pornography even though the officer’s warrant application stated that in his experience, people who molest children also have child pornography.
U.S. v. Nicholson, 2013 WL 3487743 (10^th Cir. 2013):

Holding: Officer violated 4^th Amendment by stopping Defendant for making a left turn that was not illegal, and Officer’s mistake of law on this matter was unreasonable.
U.S. v. De La Cruz, 92 Crim. L. Rep. 431 (10^th Cir. 1/9/13):

Holding: Even though an alien-passenger fled from Defendant-Driver’s car, Officers were not permitted to detain Driver where they had a photo of an alien-suspect they were looking for and Driver did not match the photo.
Kaufman v. Higgs, 92 Crim. L. Rep. 132 (10^th Cir. 10/23/12):

Holding: Even though Defendant refused to answer police questions during a consensual encounter, this did not provide probable cause to arrest him for obstruction of justice.
U.S. v. Neff, 2012 WL 1995064 (10^th Cir. 2012):

Holding: Driver’s exit from Interstate highway after seeing a drug checkpoint sign did not constitute reasonable suspicion to stop vehicle, even though Defendant also looked “surprised” to see police, and backed into a driveway to turn around.
U.S. v. Edwards, 2001 WL 36286643 (10^th Cir. 2001):

Holding: Where police had a report that a bank was robbed but then learned the report was false, police could not then search trunk of Defendant’s car without a warrant, even though Defendant was outside the bank with a bag of money that appeared to be stained with the dye banks use in bank robberies.
U.S. v. Trestyn, 2011 WL 1783008 (10^th Cir. 2011):

Holding: Where Officer stopped car for license plate violation but should have observed when he got closer to car that there was no violation, Officer’s questioning of driver and passenger about their travel destinations unnecessarily prolonged the stop and exceeded its original scope so as to violate 4^th Amendment.
U.S. v. Harrison, 639 F.3d 1273 (10^th Cir. 2011):

Holding: Where police used deception to obtain consent to search by telling Defendant that police had received a tip that there were bombs at his apartment, this vitiated his consent to search.
Klen v. City of Loveland, 90 Crim. L. Rep. 270 (10^th Cir. 11/15/11):

Holding: Owners of commercial premises that were still under construction had an expectation of privacy in the premises protected by 4^th Amendment.
U.S. v. Martinez, 89 Crim. L. Rep. 694, 2011 WL 2687276 (10^th Cir. 7/12/11):

Holding: A static-only 911 call did not provide exigent circumstances for warrantless search of residence where call originated.
U.S. v. Harrison, 89 Crim. L. Rep. 206, 2011 WL 1782961 (10^th Cir. 5/11/11):

Holding: Where police used deception to gain Defendant’s consent to search his apartment by telling him that they received a tip about a bomb in his apartment, this violated the 4^th Amendment; courts should be “especially cautious when [police] deception creates the impression that the defendant will be in physical danger if he or she refuses to consent to the search.”
U.S. v. Timmann, 94 Crim. L. Rep. 389 (11^th Cir. 12/18/13):

Holding: Even though there was bullet hole in a common wall of an apartment building and no one answered the door when police knocked, this did not provide exigent circumstances to enter the adjoining apartment without a warrant.
U.S. v. Valerio, 2013 WL 3069300 (11^th Cir. 2013):

Holding: Terry did not authorize police to conduct an investigate stop of Defendant a week after last observing him doing anything suspicious.
U.S. v. Gibson, 2013 WL 538007 (11^th Cir. 2013):

Holding: Defendant has standing to challenge use of GPS device on car he did not own while he was in possession of car, but did not have standing to challenge use of device when he was not a driver or passenger.
U.S. v. Doe, 90 Crim. L. Rep. 712 (11^th Cir. 2/23/12):

Holding: The government cannot compel a suspect to decrypt his computer hard drives without granting him full immunity from prosecution where the act of unlocking the devices would itself be testimonial.
Coffin v. Brandau, 89 Crim. L. Rep. 419 (11^th Cir. 6/3/11):

Holding: Officers violated 4^th Amendment by making a warrantless entry into open garage of a house to make arrest.
U.S. v. Wicks, 94 Crim. L. Rep. 603 (C.A.A.F. 2/20/14):

Holding: Search of text messages on cell phone requires a warrant, even though a third-party had taken Defendant’s phone and searched the phone herself before turning it over to investigators.
U.S. v. Cote, 92 Crim. L. Rep. 749 (C.A.A.F. 3/18/13):

Holding: A delay in forensic search of a computer past expiration date for the search warrant required suppression of evidence found on computer.
U.S. v. Peyton, 95 Crim. L. Rep. 14 (D.C. Cir. 3/21/14):

Holding: Even though Defendant lived with his Grandmother, she did not have apparent authority to give consent to search a shoebox by Defendant’s bed in the living room; Grandmother’s statement that Defendant kept his personal property around the bed should have made it obvious to police that the closed shoebox didn’t belong to Grandmother, and police should have inquired further to determine who owned shoebox.
States v. Glover, 94 Crim. L. Rep. 233 (D.C. Cir. 11/8/13):

Holding: (1) The wiretapping statute, Title III, 18 USC 2518(3), prohibits a judge in one district from authorizing installation of an electronic listening device in another district; (2) violation of this territorial jurisdiction requires suppression of the intercepted communication; and (3) no good-faith exception to the statute’s exclusionary rule applies for violation of territorial jurisdiction.
Jackson v. U.S., 92 Crim. L. Rep. 363 (D.C. 12/13/12):

Holding: Even though Officer saw driver stopped for traffic violation switch places with passenger and make movements toward the dashboard area, this did not provide reasonable suspicion to search vehicle for weapons.
U.S. v. Taylor, 2012 WL 3243054 (D.C. 2012):

Holding: Even though Defendant-Driver was arrested for DWI, the search of his glove box could not be justified under the search incident to arrest exception to the warrant requirement, since there was no reason to believe that evidence relevant to the crime of DWI would be in the glove box.

U.S. v. Gilmore, 2013 WL 2138906 (D. Colo. 2013):

Holding: Even though police were called to a scene about a suspicious person and they found Defendant to be intoxicated and disoriented, police were not justified in conducting a Terry pat-down search of Defendant because police were not concerned that Defendant was armed or dangerous, and there was no indication that Defendant was aggressive or hostile.
U.S. v. Paetsch, 2012 WL 5213011 (D. Colo. 2012):