Under Gant, the search incident of defendant’s backpack was unreasonable because he was handcuffed and could not access it. Under Second Circuit authority, “exigent circumstances [can] justify a warrantless search of a closed container only when the police have reason to believe a container is concealing a dangerous instrumentality and that the hidden danger poses an imminent threat to either the arresting officers or the surrounding public.” Here, the police did not have that either. “Special exigencies” may permit it. United States v. Morillo, 2009 U.S. Dist. LEXIS 94396 (E.D. N.Y. October 9, 2009), USMJ R&R 2009 U.S. Dist. LEXIS 94421 (E.D. N.Y. August 12, 2009):
Even without exigent circumstances, “[t]here may be cases in which the special exigencies of the situation would justify the warrantless search of a suitcase.” Arkansas v. Sanders, 442 U.S. 753, 763 n.11. The Supreme Court in Chadwick noted that “there may be other justifications for a warrantless search of luggage taken from a suspect at the time of his arrest; for example, if officers have reason to believe that luggage contains some immediately dangerous instrumentality, such as explosives, it would be foolhardy to transport it to the station house without opening the luggage and disarming the weapon.” 433 U.S. at 15 n.9 (citing Johnson, 467 F.2d at 639).
The circumstances of this case fit squarely into this justification for conducting a warrantless search of luggage. Morillo’s furtive and evasive behavior gave the officers reason to believe he was hiding something potentially dangerous in his backpack at the time of his arrest. Officer Finnegan testified that “I need to know what’s — what’s in that backpack and also what’s going in my car as I transport it to the stationhouse.” (July 2, 2009 Tr. 10-11.) According to Officer Finnegan, this was necessary for the safety of himself, his partner, the prisoner and the people around. (See R & R 11.)
Based on the information that they knew at the time of Morillo’s arrest, Officers Lancer and Finnegan had reason to believe that Morillo was hiding a dangerous instrumentality in his backpack. Morillo had fled on his bicycle, continued fleeing on foot after crashing his bicycle, and then resisted arrest. This was in response to the officers’ request for identification and their statement that the stop was directed at Morillo riding his bicycle on the sidewalk. Morillo’s disproportionate response–attempting to avoid potential liability for violating the New York City Administrative Code by exposing himself to further criminal liability during the course of his failed get-away-properly gave the officers reason to suspect that Morillo fled and resisted arrest because he did not want a greater wrong uncovered.
Because police officers, in this age of terrorist-related threats, are on their guard for suspicious packages and furtive behavior in public places, Officers Lancer and Finnegan reasonably could have thought that Morillo was fleeing from a potential search of his own backpack. The circumstances in this case, therefore, justified the officers’ steps to affirm their suspicions by opening Morillo’s backpack before transporting it in their police car.
“[T]he police received information about a reported domestic violence incident involving one man and one woman in a residence at the end of a dead-end street, and minutes later happened upon a car containing one man and one woman driving away from that dead-end. The totality of these circumstances justifies a brief investigative detention in order to ascertain whether the individuals in the car were those involved in the reported criminal activity.” United States v. Delano, 348 Fed. Appx. 258 (9th Cir. 2009) (unpublished).*
A protective sweep of a motel room was justified because of the number of people seen coming and going from in there. United States v. Carrillo, 2008 U.S. Dist. LEXIS 110320 (C.D. Cal. October 30, 2008).*
A search incident of defendant’s van towed to the police station for search was invalid under Gant. Aldin v. State, 21 So. 3d 68, 34 Fla. L. Weekly D 2046 (Fla. 3 DCA 2009).
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"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.
