Post details: CA10: If defendant lacks "standing," he also lacks standing to challenge a protective sweep
07/12/09
CA10: If defendant lacks "standing," he also lacks standing to challenge a protective sweep
Defendant who lacked "standing" to challenge a search under Carter because he was in a garage of another packaging marijuana also lacked standing to challenge a sweep of the premises that led to his arrest. Besides, the sweep was legal anyway. United States v. Jimenez, 336 Fed. Appx. 798 (10th Cir. 2009) (unpublished):
Defendant's detention occurred after the police had conducted the sweep of Gonzalez's residence, and only an individual with a legitimate expectation of privacy in the residence could object to the sweep. After entering the garage, officers acted reasonably in detaining Defendant when they caught him red handed with large quantities of marijuana, cuttings tools, and scales in plain sight. See United States v. Turner, 553 F.3d 1337, 1344 (10th Cir. 2009) (holding a "warrantless arrest by a law officer is reasonable under the Fourth Amendment where there is probable cause to believe that a criminal offense has been or is being committed").
We reject any contention that the officers could not rely on the readily apparent drug trafficking evidence in the garage because they were not "lawfully located in a place from which the [drug paraphernalia could] be plainly seen." United States v. Naugle, 997 F.2d 819, 822 (10th Cir. 1993). In holding as much, we agree with our sister circuit's reasoning that a claim the officers were not legitimately on the premises can only be raised by an individual with a legitimate expectation of privacy in those same premises. See United States v. Paopao, 469 F.3d 760, 765 (9th Cir. 2006), cert. denied, 550 U.S. 938, 127 S. Ct. 2249, 167 L. Ed. 2d 1097 (2007).
From defendant's lethargy and smell of marijuana from the car, the experienced officer had reasonable suspicion. United States v. Binion, 570 F.3d 1034 (8th Cir. 2009).*
A dog search during an unjustified stop states a civil claim. Lange v. Miller, 2009 U.S. Dist. LEXIS 58591 (D. Colo. June 25, 2009):
A dog search of a vehicle that is conducted while the vehicle is being unlawfully detained implicates the Fourth Amendment in the same manner as any other search conducted in conjunction with any other improper seizure. See Caballes, 543 U.S. at 408. Moreover, even if the initial stop was justified, it is well-established that a dog search may not be employed if the dog search extends "beyond the measure of time required for the officer to complete ... the purpose for which" the vehicle was initially detained. See United States v. Morales-Zamora, 914 F.2d 200, 203 (10th Cir. 1990).
Pingbacks:
No Pingbacks for this post yet...
FourthAmendment.com
Notes on Use
| Sun | Mon | Tue | Wed | Thu | Fri | Sat |
|---|---|---|---|---|---|---|
| << < | ||||||
| 1 | 2 | 3 | 4 | 5 | 6 | |
| 7 | 8 | 9 | 10 | 11 | 12 | 13 |
| 14 | 15 | 16 | 17 | 18 | 19 | 20 |
| 21 | 22 | 23 | 24 | 25 | 26 | 27 |
| 28 | ||||||
Search
©
2003-10
Online since Feb. 24, 2003
To search Search and Seizure on Lexis.com $
Contact / About
www.johnwesleyhall.com
www.LawofCriminalDefense.com
Latest Slip Opinions:
U.S. Supreme Court
Federal Appellate Courts
First Circuit
Second Circuit
Third Circuit
Fourth
Circuit
Fifth Circuit
Sixth
Circuit
Seventh
Circuit
Eighth
Circuit
Ninth Circuit
Tenth Circuit
Eleventh
Circuit
D.C.
Circuit
Military Courts: C.A.
A.F., Army,
AF, N-M,
CG
Hall's links to state
opinions
Google Scholar
LexisWeb
LII State Appellate
Courts
LexisONE
free caselaw
Findlaw Free Opinions
Most recent SCOTUS cases:
2009-10 Term:
Cert. granted:
City of Ontario v. Quon, 08-1338
granted Dec. 14, 2009 (ScotusWiki)
Decided:
Michigan
v. Fisher, decided Dec. 7, 2009 (per curiam) (ScotusWiki)
2008-09 Term:
Decided:
Herring
v. United States, 129 S. Ct. 695, 172 L.Ed.2d 496, decided Jan. 13 (ScotusWiki)
Pearson
v. Callahan, 129 S. Ct. 808, 172 L. Ed. 2d 565, decided Jan. 21 (ScotusWiki)
Arizona
v. Johnson, 129 S. Ct. 781, 172 L. Ed. 2d 694, decided Jan. 26 (ScotusWiki)
Arizona
v. Gant, 129 S. Ct. 1710, 173 L. Ed. 2d 485, decided April 21 (ScotusWiki)
Safford
Unified School District #1 v. Redding, 129 S. Ct. 2633, 174 L. Ed. 2d 354,
decided June 25 (ScotusWiki)
Research Links:
Supreme Court:
SCOTUSBlog
SCOTUSWiki
S. Ct.
Docket
Solicitor General's
site
Briefs
online (but no amicus briefs)
Curiae (Yale
Law)
Oyez
Project (NWU)
"On the Docket"–Medill
S.Ct.
Monitor: Law.com
S.Ct.
Com't'ry: Law.com
General (many free):
LexisWeb
Google Scholar | Google
LexisOne
Legal Website Directory
Crimelynx
Lexis.com
$
Lexis.com
(criminal law/ 4th Amd) $
Findlaw.com
Findlaw.com (4th
Amd)
Westlaw.com
$
F.R.Crim.P.
41
www.fd.org
DOJ
Computer Search Manual
USSS
computer search website
Talkleft "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." "You've got to be very careful if you don't know where you are going because you might not get there." "There ought to be limits on freedom." "The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth." "A search is a search, even if it happens to disclose nothing but the
bottom of a turntable." "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." "They that can give up essential liberty to obtain
a little temporary safety deserve neither liberty nor safety."
ACLU on privacy
Privacy
Foundation
Electronic Privacy
Information Center
Criminal
Appeal (post-conviction) (9th Cir.)
How Appealing Blog
—United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter,
J., dissenting)
—Yogi Berra
—George W. Bush (May 1999)
—Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J.,
concurring).
—Arizona v. Hicks, 480 U.S. 321, 325 (1987)
—Katz v. United States, 389 U.S. 347, 351 (1967)
—Benjamin Franklin, Historical Review of Pennsylvania (1759)
“A patriot must be ready to defend his country against his government.”
—Edward Abbey
“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)
"Freedom is just another word for nothing
left to lose."
—Kris Kristopherson, "Me and Bobby McGee" (sung by Janis Joplin)
“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 LePew
"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)
Archives
- February 2010 (34)
- January 2010 (102)
- December 2009 (104)
- November 2009 (86)
- October 2009 (80)
- September 2009 (62)
- August 2009 (56)
- July 2009 (69)
- June 2009 (53)
- May 2009 (59)
- April 2009 (70)
- March 2009 (55)
- More...
Misc
XML Feeds
What is RSS?
Who's Online?
- Guest Users: 23
powered by
