Post details: CA10: If defendant lacks "standing," he also lacks standing to challenge a protective sweep

07/12/09

Permalink 09:10:13 am, by fourth, 391 words, 102 views   English (US)
Categories: General

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 Appx. 798 (10th Cir. 2009) (unpublished):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

September 2010
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 29 30    

Search

© 2003-10
Online since Feb. 24, 2003

To search Search and Seizure on Lexis.com $
Contact / About

 www.johnwesleyhall.com
 www.LawofCriminalDefense.com

Fourth Amendment cases,
citations, and links
[New]

Latest Slip Opinions:
U.S. Supreme Court
(Home)
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
State courts

Google Scholar
Advanced Google Scholar
Google search tips
LexisWeb
LII State Appellate Courts
LexisONE free caselaw
Findlaw Free Opinions

Most recent SCOTUS cases:
2010-11 Term:
  None yet

2009-10 Term:
  Michigan v. Fisher, 130 S. Ct. 546, 175 L. Ed. 2d 410, decided Dec. 7 (per curiam) (ScotusWiki)
  City of Ontario v. Quon, 130 S.Ct. 2619, 177 L. Ed. 2d 216, decided June 17 (ScotusWiki)


2008-09 Term:
  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
  SCOTUSreport
  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


  ACLU on privacy
  Privacy Foundation
  Electronic Privacy Information Center
  Criminal Appeal (post-conviction) (9th Cir.)
  Section 1983 Blog

"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).

"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 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)

XML Feeds

What is RSS?

Who's Online?

  • Guest Users: 27

powered by
b2evolution