(Catching up: I was at an NACDL Executive Committee meeting that started Thursday night and ended Friday night, and I had a 4:30 wake up call for an early flight.) Friday’s cases:
The state failed to prove by anything more than mere suspicion that the evidence sought would be found in the place to be searched. Inferences here are weak and unavailing, particularly because of the “four corners” rule. Bouch v. State, 2006 WY 122, 143 P.3d 643 (September 27, 2006):
We must disagree with the State that we can substitute “inferences” for these essential facts under the guise of a “common sense” reading. In the absence of facts within the affidavit, establishing a nexus between the place to be searched and the evidence sought, we cannot find probable cause.
Evidence supported the district court’s conclusion that consent of third person was not obtained by threat, and there was probable cause for a search warrant. United States v. Rodriquez, 464 F.3d 1072 (9th Cir. October 5, 2006):
Fifth, Deputy Thompson told Tammi that, if she chose not to consent, he could apply for a search warrant and secure her apartment. A “statement indicating that a search warrant would likely be sought and the [apartment] secured could not have, by itself, rendered [Tammi’s] consent involuntary as a matter of law.” United States v. Whitworth, 856 F.2d 1268, 1279 (9th Cir. 1988) (citations omitted). Rather, application of this factor “hinges on whether [Tammi was] informed about the possibility of a search warrant in a threatening manner.” Soriano, 361 F.3d at 504 (citations omitted). “Even assuming, however, that [Deputy Thompson’s statements] were made in a threatening manner so as to imply the futility of withholding consent, when probable cause to justify a warrant exists, the weight of the fifth factor is significantly diminished.” Id. at 504-05 (citations omitted).
Probable cause to justify a warrant existed in this case. “Probable cause exists when there is a fair probability or substantial chance of criminal activity. It is well-settled that the determination of probable cause is based upon the totality of the circumstances known to the officers at the time of the search.” Id. at 505 (citations and internal quotation marks omitted).
Officer who stopped near defendant’s car but did not block it or use blue lights, and who then walked up with his flashlight on to talk to the defendant sitting in the car did not unlawfully seize the defendant before officer saw open container. People v. Luedemann, 222 Ill. 2d 530, 306 Ill. Dec. 94, 857 N.E.2d 187 (October 5, 2006), rev’g 357 Ill. App. 3d 411, 293 Ill. Dec. 385 828 N.E.2d 355 (2d Dist. 2005).*
Length of detention was reasonable based on reasonable suspicion. Birgans v. State, 2006 Tex. App. LEXIS 8617 (Tex. App. – El Paso October 5, 2006):
Appellant was talkative and nervous. He and his passenger gave differing stories as to why they were in the area. Both officers noticed the smell of marijuana and alcoholic beverages coming from the vehicle, and two plastic cups filled with a dark liquid were seen in the car. It does not appear the officers used dilatory tactics to detain Appellant longer than necessary. Given these circumstances, we conclude that the search of the vehicle resulted from a valid investigatory detention sufficiently limited in scope and duration.
CI’s statement provided probable cause on the totality. Schirber v. State, 2006 WY 121, 142 P.3d 1169 (September 27, 2006):
Many factors may be relevant to a determination of the veracity and the basis of knowledge of an informant. A non-exhaustive lists includes: whether the informant has previously given reliable information to law enforcement; whether the statements of the informant are against the informant’s penal interests; whether the informant acquired knowledge of the events through firsthand observation; whether the amount of detail provided is sufficient to make the statement self-verifying; the interval between the date of the events and the law enforcement officer’s application for a warrant; and the extent to which law enforcement officers have corroborated the informant’s statements. Also relevant is whether the law enforcement affiant included a professional assessment of the probable significance of the facts related by the informant, based on experience or expertise. See Gates, 462 U.S. at 233-34; United States v. Harris, 403 U.S. 573, 584-85 (1971); United States v. Mykytiuk, 402 F.3d 773, 776-77 (7th Cir. 2005); United States v. Zayas-Diaz, 95 F.3d 105, 111 (1st Cir. 1996). No one factor is dispositive in the credibility analysis, and a deficiency in one may be compensated by a strong showing of another. Id.
