Archives for: December 2006, 09
12/09/06
Search incident does not require independent exigent circumstances
A search conducted under the search incident doctrine does not have any independent requirement of exigent circumstances, although one of the purposes of search incident is to neutralize potential weapons. State v. Cooney, 2006 MT 318, 2006 Mont. LEXIS 642 (December 5, 2006).
Consent was found based on testimony of officers and a recording of defendant's voluntary Mirandized statement where he consented. State v. Ayer, 917 A.2d 214, 154 N.H. 500 (2006).*
Defense counsel could not be ineffective for not challenging what was clearly a private search. State v. Howard, 2006 Ohio 6410, 2006 Ohio App. LEXIS 6372 (8th Dist. December 7, 2006).*
Defendant came to a fire station and was talking to volunteer firemen as they were leaving for a call. They saw and smelled that it was apparent defendant was drunk. They called the police who went to defendant's home where his vehicle was outside still running. His girlfriend invited them in, and there was the defendant drunk. Entry was by consent and there was cause for arrest. State v. Runge, 2006 SD 111, 725 N.W.2d 589 (2006).*
Officer's training in interpreting body language ("kinesics") supports reasonable suspicion
Defendant was stopped for speeding. His suspicious behavior led to reasonable suspicion justifying a greater detention. United States v. Porchay, 2006 U.S. Dist. LEXIS 88350 (E.D. Ark. December 5, 2006):
At the time of the stop, Barnett had more than eleven years of experience with the highway patrol. He also had received training in kinesics, which is the interpretation of non-verbal behavior related to movement. As Barnett pulled the vehicle over, he noticed unusual movement by the occupants of the vehicle, who appeared to be reaching in the backseat and perhaps under the seat. When Barnett asked Kelley where he was going, Kelley became unusually nervous. He told Barnett that he was going to visit Fred and Dominique Coleman. However, Kelley did not know the Colemans' street address. When Barnett asked Speed where they were going, Speed became unusually nervous as well. She told Barnett that they were going to visit her friends Karen and Carolyn, after which she became defensive and refused to answer anymore of Barnett's questions. Speed was unusually reluctant to identify herself. The inconsistent answers that Speed and Kelley gave Barnett, combined with their nervousness and unusual behavior, justified Barnett's expansion of the scope of the stop to investigate further. Cf. Edmisten, 208 F.3d at 694; Lyton, 161 F.3d at 1170.
Comment: So, police departments are sending their officers for training in body language interpretation, and they use an uncommon word ("kinesics") to make it sound more important and, presumably, more reliable? Will they try to get them declared expert witnesses next? Can the defense get a Daubert hearing?
Customs did not have to have reason to believe that defendant's luggage contained contraband or dutiable goods to conduct a border search. They found ledgers that the FBI was looking for and their turning them over to the FBI was not unlawful. United States v. Gurr, 374 U.S. App. D.C. 21, 471 F.3d 144 (D.C. Cir. 2006).
Officers believed that the renter of a trailer and space had apparent authority to consent to a search of the trailer that was supposedly empty. In plain view, officers found a small quantity of drugs and then found evidence that somebody might be living there, and then they got a warrant. Up to that point, the warrantless search was based on apparent authority and it was valid. United States v. Haynes, 2006 U.S. Dist. LEXIS 88573 (D. Alaska December 6, 2006):
Here, the officers knew that Prato owned the Viskari Trailer Court. Moreover, Prato told them that he owned the trailer and that no one was living in the trailer. Based on the above information, the officers reasonably believed that Prato had actual authority to consent to a search of the trailer. When the officers commenced the consent search and found signs that someone may have been living in the trailer unbeknownst to Prato, the officers decided to apply for a search warrant. During the initial consent search, the police officers saw in plain view a plastic baggie containing a white crystalline substance which later tested positive for methamphetamine. Because Prato had apparent authority to consent to a search of a trailer he owned, the court will deny the motion to suppress the fruits of the consent search on February 21, 2006.
(As of today, the number of cases on Lexis from the U.S. District Courts is double 2005's total.)
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by John Wesley Hall
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