Archives for: May 2008, 15


Permalink 07:45:21 am, by fourth, 436 words, 327 views   English (US)
Categories: General

Officer properly posed questions to the passenger to dispell his suspicions which led to valid consent

Questions to the passenger were justified by the officer's suspicions. State v. Funderburg, 2008 NMSC 26, 144 N.M. 37, 183 P.3d 922 (April 15, 2008):

[*31] ... As we have made clear, after finding drugs on the passenger, Officer Minter did not immediately turn his attention to Defendant and begin interrogating him as a suspect, as in Patterson or Williamson, about drugs on his person. He never asked for consent to search Defendant personally, and did not do so until much later in the investigation after his arrest. If the officer had focused prematurely on Defendant as a suspect, then our inquiry today would be different. However, Officer Minter, suspecting that other evidence of the passenger's criminal act could be found in the car, asked Defendant a single question--whether there was anything in the car he needed to know about--before requesting Defendant's consent to search the car. These two simple inquiries were reasonably designed to confirm or dispel Officer Minter's suspicion about the criminal activity of the passenger, not the driver, and the presence of other contraband in the car. The officer reasonably directed his inquiry at the driver, the one person who presumably would know about the car's contents and who could provide consent for its search.

[*32] In weighing the officer's intrusion on Defendant's privacy, we should ask ourselves what other actions a reasonable officer would be expected to take under similar circumstances, if not those taken in this instance. Upon developing reasonable suspicion that other drugs or drug paraphernalia might be in the car, based on the passenger's possession of similar contraband, Officer Minter had other options, but none that would have spared Defendant the risk of an even greater intrusion into his privacy. For example, the officer could have detained the car and conducted his own warrantless search on the basis of some theory of exigent circumstances, though no such theory was raised in this case. The officer could have detained the car, awaiting a warrant or a drug dog, and allowed Defendant to leave, no doubt at Defendant's considerable inconvenience. The officer could have erred on the side of caution, and simply let the car go, thereby ignoring his suspicions and turning a blind eye to criminal activity. Or, Officer Minter could take the simplest, most direct approach with minimal intrusion on Defendant's privacy, and ask a brief question about the contents of the car before requesting Defendant's consent to search the car. Officer Minter chose the last option, and we hold that his choice was constitutionally reasonable under the circumstances.

Videotape of defendant's stop corroborated state's claim of consent. Serrano v. State, 291 Ga. App. 500, 662 S.E.2d 280 (2008).*

Permalink 07:17:15 am, by fourth, 144 words, 730 views   English (US)
Categories: General

Writ of attachment for children justified entry

Execution of a writ of attachment which led to an entry to seize children was not unreasonable. Cooper v. Upshur County Constable's Office, 2008 U.S. Dist. LEXIS 38516 (E.D. Tex. May 12, 2008).*

"The police were justified in their attempt to stop Defendant on Second Street, as discussed above, and thus to pursue him when he fled. In addition, Defendant has no expectation of privacy in any property he abandoned while being pursued by the police." United States v. Vanhoesen, 552 F. Supp. 2d 335 (N.D. N.Y. 2008).*

Defendant was seen riding a bicycle without a headlight, and this was cause for a stop and he fled. United States v. Warren, 2008 U.S. Dist. LEXIS 38849 (D. Del. May 9, 2008).*

Officer said he was stopping defendant for a turn signal violation, and that was justification for the stop. United States v. Ewell, 2008 U.S. Dist. LEXIS 38854 (D. Del. May 9, 2008).*

Permalink 07:04:19 am, by fourth, 514 words, 408 views   English (US)
Categories: General

Danger to informant justified warrantless entry

Informant inside defendant's premises was feared to be in danger, and that was an exigent circumstance for a warrantless entry. United States v. Escobedo, 2008 U.S. Dist. LEXIS 38636 (N.D. Ind. May 12, 2008):

If police officers fear for the safety of an informant or other individual, such a concern may justify an entry into an otherwise private area for exigent circumstances. United States v. Williams, 633 F.2d 742, 744 (8th Cir. 1980). The government states that in the present case, law enforcement officers were concerned about the safety of Somers, the possibility that Escobedo and others inside the Downingtown Drive house could escape undetected, and the potential for danger to the suspects, the police, and the public in general if the suspects attempted to flee the home in a vehicle. Government's Response, p. 1. In determining the reasonableness of a warrantless entry into a private residence, "the appropriate inquiry is whether the facts, as they appeared at the moment of entry, would lead a reasonable, experienced officer to believe that evidence might be destroyed or that there was a need to protect life or prevent serious injury." Id. (citing United States v. Bell, 500 F.3d 609, 612 (7th Cir. 2007)). Escobedo claims in his briefs that the police could have handled the entire affair differently and that they could have obtained a warrant. Escobedo argues that the police had no reason to fear for the safety of Somers since they had no direct evidence that she was in danger from Escobedo or any of his possible cohorts. Defendant's Brief, p. 7. He also argues that police could have kept Somers in protective custody while they obtained a warrant to search the Downingtown Drive home. Id. Escobedo argues that police could have posted "more police in surveillance positions so that all sides of Escobedo's house were visible." Id., p. 7. Finally, he states that if they feared the possibility of a vehicle chase, police could have simply blocked the end of Escobedo's driveway to prevent him or others from fleeing the home. Id., p. 8. Escobedo argues that if police had taken some or all of these actions, they would have had sufficient time to obtain a warrant before entering the premises. Id. But the government points out that "[t]he question with exigent circumstances is not whether, given the benefit of hindsight, the police could have done something different; the question is whether they had, at the time, a reasonable belief that there was a compelling need to act and time to get a warrant." Government's Brief, p. 3. The government summarizes the factual scenario leading up to the entry into Escobedo's residence by stating that "Detective Ray was confronted with a flurry of circumstances that posed a host of potential dangers to the informant, the Downingtown neighborhood, the public at large, the police officers, and even to the Defendant and his accomplices, and he made the decision to enter for the purpose of preventing anyone from getting hurt. Even if the police could have done something different in hindsight, Detective Ray nevertheless acted reasonably in protecting public safety and addressing the exigent circumstances." Id., pp. 3-4.

Permalink 06:45:47 am, by fourth, 636 words, 698 views   English (US)
Categories: General

CA8 recognizes circuit split on "blended stops" but doesn't have to get into it; this stop was unreasonably long, but not a but for cause of the dog sniff

Stop was unreasonably extended, but a dog sniff was not a "but for" cause. "Because Peralez's prolonged seizure for questioning about drug trafficking was not a but-for cause of obtaining the evidence, suppression is not warranted. See Olivera-Mendez, 484 F.3d at 511 (holding, in the alternative, that evidence discovered after a dog sniff should not be suppressed because the dog sniff, and not an earlier arguably unreasonable extension of the traffic stop, caused the discovery of the contraband)." United States v. Peralez, 526 F.3d 1115 (8th Cir. 2008). As to extending the stop:

Our cases recognize two instances when an officer may extend or expand the scope of a traffic stop beyond the original justification for the stop. First, if the encounter becomes consensual, the stop may be extended. See, e.g., Morgan, 270 F.3d at 630 (conversation after the conclusion of traffic stop was consensual, and therefore extension of the stop was not unconstitutional). Second, if the officer develops reasonable suspicion that other criminal activity is afoot, the officer may expand the scope of the encounter to address that suspicion. See, e.g., Sanchez, 417 F.3d at 975 (reasonable suspicion developed during the course of the stop, warranting expansion). We do not face either of those circumstances. The government does not claim on appeal that the drug interdiction questions posed to Peralez or the van's driver occurred during a consensual encounter. Nor does the government contend that Trooper Schlueter had reasonable suspicion that the van's occupants were engaged in illegal activities when the trooper began asking drug interdiction questions. Indeed, Trooper Schlueter testified at the suppression hearing that he did not have any reason to suspect illegal activity when he shifted the focus of his inquiries. The question presented by the facts of this case is whether Trooper Schlueter's "blended process" of conducting a drug interdiction investigation during the course of a run-of-the-mill traffic stop violated the Fourth Amendment.

In Olivera-Mendez we acknowledged a split among the circuit courts as to whether an officer conducting a traffic stop based upon probable cause violates the Fourth Amendment "by asking a few questions about matters unrelated to the traffic violation, even if this conversation briefly extends the length of the detention." 484 F.3d at 510. Three circuits have found such a brief extension does not constitute a violation, United States v. Alcaraz-Arellano, 441 F.3d 1252, 1259 (10th Cir. 2006); United States v. Burton, 334 F.3d 514, 518-19 (6th Cir. 2003); United States v. Childs, 277 F.3d 947, 951-54 (7th Cir. 2002) (en banc), while one has reached the contrary conclusion, United States v. Pruitt, 174 F.3d 1215, 1220-21 (11th Cir. 1999).

We need not decide whether a brief extension would comport with the Fourth Amendment in the context of a probable-cause stop, because the delay caused by Trooper Schlueter's questions cannot be categorized as brief. The cases where our sister circuits found a brief extension consistent with the Fourth Amendment did not involve as extensive a departure from routine, traffic-related questions as this case. Cf. Alcaraz-Arellano, 441 F.3d at 1259 (off-topic questioning while the officer wrote out a warning ticket did not "appreciably lengthen" the detention); Burton, 334 F.3d at 518-19 ("a handful of questions" about illegal activity not unreasonable); Childs, 277 F.3d at 954 (one question about marijuana did not make seizure unreasonable). Here, Trooper Schlueter engaged in a "blended process" of conducting a routine traffic stop and a drug interdiction investigation. The off-topic questions more than doubled the time Peralez was detained. The video recording of the traffic stop makes clear the questions unrelated to the traffic violation constituted the bulk of the interaction between the trooper and the van's occupants. This was not a brief extension. The extent and duration of the trooper's focus on non-routine questions prolonged the stop "beyond the time reasonably required" to complete its purpose. Caballes, 543 U.S. at 407. This violated Peralez's Fourth Amendment right to be free from unreasonable seizures.

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by John Wesley Hall
Criminal Defense Lawyer and
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Little Rock, Arkansas
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  Missouri v. McNeeley, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013) (ScotusBlog)
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2011-12 Term:
  Ryburn v. Huff, 132 S.Ct. 987, 181 L.Ed.2d 966 (2012) (other blog)
  Florence v. Board of Chosen Freeholders, 132 S.Ct. 1510, 182 L.Ed.2d 566 (2012) (ScotusBlog)
  United States v. Jones, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012) (ScotusBlog)
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"If it was easy, everybody would be doing it. It isn't, and they don't."

"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud

"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

"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]

“You know, most men would get discouraged by now. Fortunately for you, I am not most men!”
Pepé Le Pew

"There is never enough time, unless you are serving it."
Malcolm Forbes

"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)


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