Archives for: December 2006, 27
12/27/06
Show of force was "overkill for the stated purpose of a 'knock and talk'" and voided consent
A large number of officers showed up at defendant's house for a knock and talk without a search warrant, and drugs were tossed out a window when they showed up. Too many officers were present for a mere knock and talk, and this was a submission to a claim of authority. The officers' testimony was just not credible. United States v. Berry, 468 F. Supp. 2d 870 (N.D. Tex. December 21, 2006):
The court does not find credible the testimony that the entry onto Berry's property was merely for the purpose of a permissible "knock and talk." The court determines that the conduct of the officers, who knew they lacked probable cause, reflects a plan or effort to arrest Berry without getting a warrant. The totality of the circumstances suggest a major operation. There were at least eight officers present. The officers carefully planned the operation, staked out their positions surrounding Berry's house, and took cover positions. Four officers entered Berry's patio and approached the front door. This is overkill for the stated purpose of a "knock and talk." See United States v. Jones, 239 F.3d at 720 (reasonable suspicion of criminal activity cannot justify the warrantless search of a house). Moreover, the inconsistency in the testimony of several of the officers casts much doubt as to the stated purpose of a "knock and talk."
Pro se § 2255 denied because of defendant's waiver of relief at guilty plea could not be shown to be based on ineffective assistance of counsel. Also, the guilty plea waived any search claim now asserted. COA denied, too. United States v. Contorelli, 2006 U.S. Dist. LEXIS 92688 (S.D. Tex. December 22, 2006).*
During traffic stop, driver of vehicle was at first thought to be under the influence, but officers determined that she was not. During the questioning she was sked if there was any contraband in the car, and she said "possibly," and that was reasonable suspicion for detaining a few more minutes for a drug dog sniff. United States v. Harris, 2006 U.S. Dist. LEXIS 92717 (W.D. Pa. December 21, 2006).*
Terry stop justified in part because of issuance of search warrant and the facts in support of the warrant
Officers obtained a search warrant for defendant's motel room, and the SWAT team was assembled and briefed. They knew that defendant was a convicted felon and was likely armed. When they arrived at the motel, defendant's vehicle was not there, but it was found nearby with two men in it. Officers approached the vehicle and saw furtive movements of the occupants stuffing things around the seats. There was sufficient cause for a Terry stop. United States v. Perry, 2006 U.S. Dist. LEXIS 92762 (W.D. Va. December 22, 2006):
At the time the defendant was seized, officers knew of several factors which combined to create reasonable suspicion. First, the officers knew that the defendant was a convicted felon, who was reported to carry a firearm. Second, the officers were aware that a search warrant had been issued as to the defendant and the defendant's motel room. Third, the officers observed the men in the car appear to stuff something between the driver's seat and center console of the vehicle. Based on the above factors, the court concludes that the stop and search of the defendant was justified by reasonable suspicion when examined under the totality of the circumstances.
Defendant's encounter with the ATF investigating a burglary that netted at leat 20 firearms was deliberately extended and played by him to try to find out what the police knew. [The facts are convoluted and interesting, but the victim got a telephone number of calls to his house when he was gone that the police were able to get the subscriber information and go talk to the caller, and that led to discovery of a vehicle seen near the victim's house.] United States v. Dimott, 2006 U.S. Dist. LEXIS 92735 (D. Me. December 21, 2006).*
Officers had probable cause to arrest the defendant at the address specified in the search warrant because of the fact he was observed there selling drugs. When he was stopped during the search and his actual address was determined to be elsewhere, the probable cause did not dissipate. United States v. Davenport, 2006 U.S. Dist. LEXIS 92685 (E.D. Mich. December 22, 2006).*
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by John Wesley Hall
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