Arizona holds that any additional delay after issuing defendant two warnings and defendant was [purportedly] free to go, when consent was sought, was de minimus by constitutional standards. Waiting 100 minutes for a drug dog to arrive was not unreasonable because it was based on reasonable suspicion of drug trafficking. State v. Teagle, 217 Ariz. 17, 170 P.3d 266, 516 Ariz. Adv. Rep. 18 (2007), rev. den. 2008 Ariz. LEXIS 42 (Mar. 18, 2008):
P28 At the time of this incident, Officer Greene had approximately four years experience in law enforcement and had attended numerous schools in addition to basic academy training, including three drug interdiction schools. Based on his specialized training and experience, the officer testified that the following indicators present at this traffic stop were, in combination with one another, consistent with the trafficking of illegal drugs or other criminal activity: (1) the nature of defendant’s travel plans, namely, that he traveled from Florida to Phoenix in only two to three days, unusually fast for someone on vacation, and that his stated purpose for driving from Florida to Las Vegas was to play pool in a bar, yet he had no specific plans or hotel reservations; (2) the mounted cellular phones, indicating both were in use; (3) the fast-food wrappers and containers of food; (4) the luggage and clothing hung in the backseat rather than the trunk; (5) defendant’s response during the first stop that he was not “aware” of anyone placing contraband in his vehicle; (6) defendant’s decision to exit his vehicle and approach the patrol car during the second stop; and (7) the stop occurred in a known drug corridor.
Under State v. Gant, 216 Ariz. 1, 162 P.3d 640 (2007), defendant was arrested too far away from his car to make it subject to search incident. However, the state wins this case based on the fact that inevitable discovery would save the search because of application of the inventory doctrine, a challenge not made below. State v. Rojers, 216 Ariz. 555, 169 P.3d 651 (2007). Comment: The court faults the defendant for not putting the trial court and the state on notice of this argument and then gleans from the record enough to show that it sort of was peripherally raised because the arguments sounded like an inventory issue. This is the perverse beauty of appellate review. In this case, the court could have just said “this wasn’t fully litigated below, so you lose,” but it chose to go into the merits without a full record to further nail the defendant by showing that “with what we have here, this search looks OK.” In this case, the defendant is faulted for not being more specific as to what he wanted to litigate because the tenor of the argument showed that he was on the right track. The bottom line is really more simple than the court allows, and it is visible to me between the lines: The defendant knew the argument and he raised it, but knew he could not win on the facts so he chose to not delve into it in detail. Been there; done that; have the lost suppression motions to prove it.
Defendant obviously felt pressure to consent, but it was [apparently] of his own making, and that did not make consent invalid. Defendant seized on one sentence in the USMJ’s R&R. United States v. Tindell, 2007 U.S. Dist. LEXIS 80418 (E.D. Tenn. October 30, 2007):
Viewed in its complete context, Judge Guyton’s statement means nothing more than Tindell probably felt pressure under the circumstances based on his outstanding warrant or based on the fact that the KPD officers appeared to have considerable information about his drug dealing. The key point in all of this, however, is that Judge Guyton ultimately concluded that police coercion did not contribute to defendant’s statements and admissions. Judge Guyton correctly concluded in effect that the totality of the circumstances indicates that any statement by Tindell was the product of free and rational choice rather than any police coercion. There is ample case law supporting Judge Guyton’s conclusion that the situation in this case falls far short of the police coercion required to render a defendant’s statement involuntary. …
This entry was posted in Uncategorized. Bookmark the permalink.
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced." —Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence." —Mapp v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today." — Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their property." —Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people. And so, while we are concerned here with a shabby defrauder, we must deal with his case in the context of what are really the great themes expressed by the Fourth Amendment." —United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated here, has not–to put it mildly–run smooth." —Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the bottom of a turntable." —Arizona v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. ... But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected." —Katz v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.” —United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted intrusion by government—is as easily lost through insistent nibbles by government officials who seek to do their jobs too well as by those whose purpose it is to oppress; the piranha can be as deadly as the shark.” —United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want / But if you try sometimes / You just might find / You get what you need." —Mick Jagger & Keith Richards, Let it Bleed (album, 1969)
"In Germany, they first came for the communists, and I didn't speak up because I wasn't a communist. Then they came for the Jews, and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists, and I didn't speak up because I wasn't a trade unionist. Then they came for the Catholics and I didn't speak up because I wasn't a Catholic. Then they came for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration camp]
“Children grow up thinking the adult world is ordered, rational, fit for purpose. It’s crap. Becoming a man is realising that it’s all rotten. Realising how to celebrate that rottenness, that’s freedom.” – John le Carré, The Night Manager (1993), line by Richard Roper
"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime." —Johnson v. United States, 333 U.S. 10, 13-14 (1948)
The book was dedicated in the first (1982) and sixth (2025) editions to Justin William Hall (1975-2025). He was three when this project started in 1978.
