Category Archives: State constitution

IN rejects Heien under state constitution

Indiana rejects Heien under the state constitution. It is incongruous to justify a stop when the law shouldn’t even allow it. Mercado v. State, 2022 Ind. App. LEXIS 377 (Nov. 23, 2022):

Posted in Reasonableness, State constitution | Comments Off on IN rejects Heien under state constitution

DC: Gant search incident for open containers did not permit search of a small plastic box

A Gant search incident of a vehicle authorized for open containers of alcohol didn’t permit a more intense search of a plastic “otter box” finding PCP. Smith v. United States, 2022 D.C. App. LEXIS 326 (Sep. 29, 2022). The state … Continue reading

Posted in Probation / Parole search, Search incident, State constitution | Comments Off on DC: Gant search incident for open containers did not permit search of a small plastic box

IA: Failure to articulate why state const. applies for different result is waiver

Failure to articulate one’s argument that the state constitution requires a different result is waiver. State v. Versteegh, 2022 Iowa App. LEXIS 434 (June 15, 2022). “Here, the issuing judge reasonably concluded, based on all of the circumstances, that there … Continue reading

Posted in Good faith exception, GPS / Tracking Data, Reasonable suspicion, State constitution, Waiver | Comments Off on IA: Failure to articulate why state const. applies for different result is waiver

WA: A detainee’s racial and ethnic factors are a part of “all the circumstances” in determining a seizure under state constitution

Under the state constitution, whether a person is “seized” must consider the person’s racial and ethnic factors that influence their perceptions. State v. Sum, 2022 Wash. LEXIS 317 (June 9, 2022):

Posted in Arrest or entry on arrest, Seizure, State constitution | Comments Off on WA: A detainee’s racial and ethnic factors are a part of “all the circumstances” in determining a seizure under state constitution

OK: Exclusionary rule applies in civil cases under state constitution

The exclusionary rule applies to Oklahoma City’s effort to enforce a warrantless entry to seize and forfeit birds in apparent distress. Oklahoma applies the exclusionary rule in most civil cases under its state constitutional provision against unreasonable searches. There was … Continue reading

Posted in Exclusionary rule, Reasonable suspicion, State constitution, Waiver | Comments Off on OK: Exclusionary rule applies in civil cases under state constitution

IN: State const’l arguments have to be raised in trial court first

Defendant’s argument for a change in standing law under the state constitution that he should have the ability to challenge the search of another person’s person and clothing wasn’t raised below, so it’s waived. State v. Allen, 2022 Ind. App. … Continue reading

Posted in Automobile exception, Burden of pleading, Overbreadth, Reasonableness, State constitution, Waiver | Comments Off on IN: State const’l arguments have to be raised in trial court first

OR: Asking juror question about refusal of consent was error, but here harmless

Oregon permits juror questions, and here one asked whether defendant willingly provided a DNA sample. Asking it on the record all amounted to error, but under plain error review, with other evidence in the case, it’s not reversible. State v. … Continue reading

Posted in Consent, Standing, State constitution | Comments Off on OR: Asking juror question about refusal of consent was error, but here harmless

NM: Traffic arrest by reserve deputy in violation of statute violates state constitution

Where the legislature requires traffic arrests be made by uniformed, sworn, and salaried officers, arrest by a reserve deputy violates the state constitution. State v. Wright, 2022 N.M. LEXIS 2 (Jan. 10, 2022). “The Court finds that Mr. Hunley was … Continue reading

Posted in Arrest or entry on arrest, Reasonable suspicion, State constitution | Comments Off on NM: Traffic arrest by reserve deputy in violation of statute violates state constitution

OR: Exigency for automobile exception has to exist at the time of search; telephonic warrant preferred

Oregon Supreme Court holds that the exigency for an automobile exception search under the state constitution must actually exist at the time of the search. The per se rule from 1986’s Brown case is overruled. Technological changes and statute since … Continue reading

Posted in Automobile exception, State constitution | Comments Off on OR: Exigency for automobile exception has to exist at the time of search; telephonic warrant preferred

N.D.Cal.: Rule 41(g) is for return of things, not suppression of evidence

Rule 41(g) is only for return of seized things, and it can’t be used to suppress evidence, especially in a state court. Christie v. United States, 2021 U.S. Dist. LEXIS 231113 (N.D.Cal. Dec. 2, 2021). Defendant’s motion to suppress cites … Continue reading

Posted in Motion to suppress, Rule 41(g) / Return of property, State constitution | Comments Off on N.D.Cal.: Rule 41(g) is for return of things, not suppression of evidence

D.Conn.: Flight from the police with abandonment of stuff obviates the need to decide RS for the stop

Defendant’s flight from the police and abandonment of items in flight was not while he was “seized.” Thus, the need to decide reasonable suspicion for a stop is obviated. United States v. Sockwell, 2021 U.S. Dist. LEXIS 215294 (D.Conn. Nov. … Continue reading

Posted in Abandonment, Probation / Parole search, State constitution | Comments Off on D.Conn.: Flight from the police with abandonment of stuff obviates the need to decide RS for the stop

NJ: Flagrant knock-and-announce violation requires suppression under state constitution

A flagrant violation of the knock-and-announce rule violates the state constitution and the result is excluded. Violating the knock-and-announce requirement makes the search warrantless. The court recognizes the Fourth Amendment rule is contra. State v. Caronna, 2021 N.J. Super. LEXIS … Continue reading

Posted in Knock and announce, State constitution | Comments Off on NJ: Flagrant knock-and-announce violation requires suppression under state constitution

VT: Roving CBP patrol stop one mile from Canadian border violated state const. even though probably not 4A

A roving border patrol stop a mile from the Canadian border led to state charges against defendant. The court holds the state constitution was violated even if the Fourth Amendment was not, and the evidence should be suppressed. State v. … Continue reading

Posted in Border search, Immigration checkpoints, State constitution | Comments Off on VT: Roving CBP patrol stop one mile from Canadian border violated state const. even though probably not 4A

MA: Review of old body cam recording in unrelated investigation was a separate invasion of privacy requiring SW

The use of a body camera in the home responding to a domestic disturbance was reasonable. However, reviewing the body cam recording for the purposes of a later and unrelated investigation without a search warrant was unreasonable. The second look … Continue reading

Posted in Constitutionally protected area, Reasonable expectation of privacy, State constitution | Comments Off on MA: Review of old body cam recording in unrelated investigation was a separate invasion of privacy requiring SW

CA10: Order to get out of car doesn’t unreasonably extend stop

The officer’s order for defendant to get out of the car was reasonable and did not unreasonably prolong the stop. United States v. Malone, 2021 U.S. App. LEXIS 26136 (10th Cir. Aug. 30, 2021). “While Fisk brings his assignment of … Continue reading

Posted in Ineffective assistance, Reasonable suspicion, State constitution, Waiver | Comments Off on CA10: Order to get out of car doesn’t unreasonably extend stop

NJ Const. protects right of privacy in detainee’s private call from police station on unwarned recorded line

The state constitution protects against surreptitious recording of a telephone line from within a police station of a suspect where there was no warning and he was allowed into a room alone to make a call. State v. McQueen, 2021 … Continue reading

Posted in Reasonable expectation of privacy, State constitution | Comments Off on NJ Const. protects right of privacy in detainee’s private call from police station on unwarned recorded line

NJ declines to follow Heien under state constitution

NJ declines to adopt a reasonable mistake of law justification for an automobile stop and resulting search. At issue was a traffic law barring license plate frames that cover information on the plate that resulted in 100,000 stops per year. … Continue reading

Posted in Inventory, Reasonableness, Scope of search, State constitution | Comments Off on NJ declines to follow Heien under state constitution

ID: Nonpayment of fine warrant not based on PC for willfulness or ability to pay; writ of prohibition granted

A clerk’s affidavit of nonpayment said nothing about willfulness of nonpayment, and there was no showing of an “ability to pay analysis” for probable cause. Writ of prohibition against the contempt arrest is granted. Beck v. Elmore County Magistrate Court, … Continue reading

Posted in Arrest or entry on arrest, Probable cause, State constitution | Comments Off on ID: Nonpayment of fine warrant not based on PC for willfulness or ability to pay; writ of prohibition granted

IA: State constitution prohibits warrantless trash search; “Current Fourth Amendment jurisprudence is a mess.”

Finding Iowa law long recognized trespass was an unreasonable entry, the state Supreme Court holds under the state constitution that trash out for collection by the trash collector is not abandoned property, and defendant still retained a reasonable expectation of … Continue reading

Posted in Abandonment, GPS / Tracking Data, Reasonable expectation of privacy, State constitution | Comments Off on IA: State constitution prohibits warrantless trash search; “Current Fourth Amendment jurisprudence is a mess.”

WY: Mere citation to state constitution without cogent argument for different treatment is waiver

Citation alone to the state constitution’s search and seizure without cogent argument for differentiating Fourth Amendment cases is waiver. The totality of information before the officer in the traffic stop justified it. Elmore v. State, 2021 Wyo. LEXIS 48 (Mar. … Continue reading

Posted in Burden of pleading, Burden of proof, Franks doctrine, State constitution | Comments Off on WY: Mere citation to state constitution without cogent argument for different treatment is waiver