Post details: D.S.C.: Arrest in doorway did not justify protective sweep

11/04/09

Permalink 05:50:32 am, by fourth, 513 words, 140 views   English (US)
Categories: General

D.S.C.: Arrest in doorway did not justify protective sweep

Defendant's arrest in his doorway did not justify a protective sweep of the premises under Buie. Moreover, the facts did not support a protective sweep because the police had no evidence to believe that there were others in the defendant's mobile home, just because he would not tell the police that there was somebody else inside when they asked because he was yelling incoherently. United States v. McCants, 664 F. Supp. 2d 620 (D. S.C. 2009):

While the Supreme Court has recognized that there is a necessary balance between one's right to privacy and the need for law enforcement officials to ensure their own safety, the Supreme Court has consistently shown a heightened regard for the right to privacy in one's home. The Government can cite to no precedent, and this Court is aware of none, where any court has held that the arrest of a suspect near the door of a residence automatically allows police to circumvent the warrant requirement (and even the information burden necessary to conduct a protective sweep) and gain the ability to "sneak a peek" inside the residence in question. In fact, some courts have implicitly held the exact opposite. See, e.g., United States v. Stover, 474 F.3d 904, 911 (6th Cir. 2007) ("[D]uring a search incident to an arrest occurring inside a home, officers may 'as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could immediately be launched.'") (quoting Buie, 494 U.S. at 327) (emphasis added). Furthermore, several of the guns were not only inside Defendant's trailer, but inside a closet within the trailer. This, then, went beyond merely looking around to ensure the safety of the officers because they assert Defendant was arrested in very close proximity to the front door. Instead, officers, who lacked probable cause and had no search warrant, walked into Defendant's trailer through the front door and proceeded to search the entire residence, including closed closets.

The search of defendant's car could not be justified by the government as a search incident where defendant was handcuffed and in a police car or by inventory, but it could be justified by probable cause. United States v. German, 664 F. Supp. 2d 614 (D. S.C. 2009).*

While defendant's stop was justified, his questioning after his paperwork came back "clear" was unreasonable, and the motion to suppress should be granted. United States v. Brantley, 2009 U.S. Dist. LEXIS 101307 (E.D. Tex. September 24, 2009)*:

But, after he issued the warning and had clear returns at 9:50 p.m., Sgt. Hemmenway did not inform Defendant or his passenger that they were free to leave. Instead, he detained them further, asking for consent to search, inquiring about illegal drugs in the car, and informing them that they must wait for a K-9 unit to perform an open-air dog sniff.

Therefore, the principal issue before the Court is whether Sgt. Hemmenway had reasonable suspicion to continue detaining Defendant after clearing his driver's license and vehicle registration at 9:50 p.m. The K-9 unit did not arrive until approximately 19 minutes later.

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"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).

"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)

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Johnson v. United States, 333 U.S. 10, 13-14 (1948)

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