Archives for: August 2011, 11
08/11/11
E.D.Wis.: Defendant could be stopped and arrested based on CI's observation that he was in possession of a gun within the previous seven days
Defendant’s search warrant and arrest away from the premises were based on a CI’s observations that he was in possession of a gun within the previous seven days. Since he was a felon, his stop and search away from the premises was based on probable cause from the reliable CI. It could not be justified by the warrant since he was not on the premises at that time. United States v. Griffin, 2011 U.S. Dist. LEXIS 85414 (E.D. Wis. August 2, 2011)* R&R 2011 U.S. Dist. LEXIS 87800 (E.D. Wis. June 22, 2011)* [The CI may give PC to arrest, but what about conviction? Here, the police had the SW being executed at the house, and that likely would provide evidence for prosecution. A search incident under Gant might be problematic. Without the SW being executed at the time, the police might not have a prosecutable case.]
Defendants’ consent after a late morning knock and talk was valid and virtually spontaneous after being advised of the right to refuse consent. The officers entered through a gate by following another vehicle in, violating curtilage, but that did not void the consent. United States v. Victores, 2011 U.S. Dist. LEXIS 86742 (S.D. Fla. August 5, 2011), R&R 2011 U.S. Dist. LEXIS 86538 (S.D. Fla. February 10, 2011).*
Defendant’s stop was valid for two traffic offenses, and the officer also had reasonable suspicion from earlier seeing him carry a gun to the car arguably in violation of state law. United States v. Gonzales, 2011 U.S. Dist. LEXIS 85178 (W.D. Okla. August 2, 2011).*
E.D.Pa.: A warrant for “premises” includes vehicles located on it even though they aren’t specified
A warrant for “premises” includes vehicles located on it even though they aren’t specified. United States v. Perez, 2011 U.S. Dist. LEXIS 86820 (E.D. Pa. August 5, 2011):
The Third Circuit has not discussed the lawfulness of vehicle searches pursuant to “premises warrants” which do not specifically mention automobiles. Cf. United States v. Menke, 468 F.2d 20, 22 (3d Cir. 1972) (analyzing search of car as warrantless seizure where “area for search set forth” in agents’ warrant “was limited to the house and did not include the automobile”). A number of other courts, however, have concluded that a valid warrant for a “premises” generally permits the search of any vehicles owned by the resident that are located on the property. See, e.g., United States v. Reivich, 793 F.2d 957, 963 (8th Cir. 1986) (citing United States v. Percival, 756 F.2d 600, 612 (7th Cir. 1985)) (additional citations omitted) (noting that vehicles except for “the vehicle of a guest or other caller” are included within scope of a warrant authorizing a premises search); United States v. Silva, 593 F. Supp. 2d 316, 318 (D. Mass. 2009) (citing United States v. Patterson, 278 F.3d 315, 318 (4th Cir. 2002)) (additional citations omitted). In this vein, the Fifth Circuit has “consistently held that a warrant authorizing a search of ‘the premises’ includes vehicles parked on the premises.” United States v. Fields, 380 F. App’x 400, 404 n.22 (5th Cir. 2010) (quoting United States v. Singer, 970 F.2d 1414, 1418 (5th Cir. 1992)). The parties do not dispute that the 4Runner belonged to Perez. The search of the 4Runner was thus within the scope of the warrant if the vehicle was on the premises at the time.
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2011-12 Term:
Ryburn
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2012) (other
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Florence
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2012) (ScotusBlog)
United
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Messerschmidt
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Kentucky
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Camreta
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Ashcroft
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Davis
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Michigan
v. Fisher, 558 U.S. 45, 130 S.Ct. 546, 175 L.Ed.2d 410 (Dec. 7, 2009) (per
curiam) (ScotusBlog)
City
of Ontario v. Quon, 130 S.Ct. 2619, 177 L.Ed.2d 216 (June 17, 2010) (ScotusBlog)
2008-09 Term:
Herring
v. United States, 555 U.S. 135, 129 S.Ct. 695, 172 L.Ed.2d 496 (Jan. 13,
2009) (ScotusBlog)
Pearson
v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (Jan. 21, 2009)
(ScotusBlog)
Arizona
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(ScotusBlog)
Arizona
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Safford
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L.Ed.2d 354 (June 25, 2009) (ScotusBlog)
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J.), rev'd Nix v. Williams, 467 US. 431 (1984).
—Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
— Terry
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—Entick
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—United
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—Chapman
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—Arizona
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"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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