Movement of a vehicle during stop is a separate seizure and resulted in an unconstitutional search

Moving defendant’s car during a stop was a separate seizure that was unreasonable under the circumstances. United States v. Virden, 488 F.3d 1317 (11th Cir. 2007):

The seizure here was unreasonable absent probable cause because of its scope and intrusiveness. While not unduly lengthy, the seizure was accomplished by the taking of Virden’s vehicle to a new location for the purposes of investigation. We have frowned upon the movement of individuals for such purposes. [citations omitted] Furthermore, to effectuate this seizure the officers handcuffed Virden, and without formally arresting him, drove him to another location. Such a seizure exceeds the boundaries of a Terry stop.

. . . [If probable cause existed, a seizure would be appropriate.]

The officers lacked the requisite probable cause to seize Virden’s car while at the gas station. At the time of the seizure, the officers were aware of the following suspicious facts about Virden: (1) he left a location of suspected drug activity, (2) he appeared to have control over the garage because the garage door closed without anyone else being seen, and (3) he misstated exactly where he had been to the police. However, neither Virden nor his vehicle were known to the investigation, despite more than year of detective work. Cf. United States v. Tamari, 454 F.3d 1259, 1262-64 (11th Cir. 2006) (finding probable cause exists where driver arrives on rural scene of drug activity driving a vehicle associated with the head of the drug conspiracy). Additionally, we have consistently held that mere presence at a crime scene without more is insufficient to establish probable cause. Holmes v. Kucynda, 321 F.3d 1069, 1081 (11th Cir. 2003). Without more, the facts in the officers’ knowledge at the time of seizure were insufficient to give rise to probable cause.

. . .

Here, the prosecution cannot evade the suppression of the evidence by utilizing the inevitable discovery exception to the exclusionary rule, because it cannot show that officers were actively pursuing any lawful means at the time of the illegal conduct. . . .

Officer’s probable cause to arrest plaintiff for DUI entitled him to qualified immunity in § 1983 suit. Wilder v. Turner, 490 F.3d 810 (10th Cir. 2007).*

Defense counsel’s failure to file a suppression motion that certainly would fail was not IAC. Till v. United States, 2007 U.S. Dist. LEXIS 42219 (W.D. Mich. June 11, 2007).*

The government established consent by the preponderance of the evidence, the court reciting 13 findings of fact supporting consent. United States v. Plugh, 2007 U.S. Dist. LEXIS 42199 (W.D. N.Y. June 11, 2007).*