Post details: Condition of probation which authorizes nonconsensual, suspicionless searches is unconstitutional

06/15/08

Permalink 10:50:51 am, by fourth, 425 words, 142 views   English (US)
Categories: General

Condition of probation which authorizes nonconsensual, suspicionless searches is unconstitutional

In the absence of statutory authority, a condition of probation which authorizes nonconsensual, suspicionless searches is unconstitutional. State v. Bennett, 39 Kan. App. 2d 890, 185 P.3d 320 (2008), certiorari granted State v. Bennett, 2008 Kan. LEXIS 517 (Kan., Sept. 22, 2008).

Terry supported search of defendant's purse for weapons when officer returned it to her after a stop. Speten v. State, 2008 WY 63, 185 P.3d 25 (2008):

[*P24] Under Terry analysis, the question is this: at the time he searched the appellant's purse, did Deputy Seeman have a reasonable suspicion that the appellant was engaged in criminal activity, and if so, did the officer safety concern that engendered Terry justify the deputy's search of the appellant's purse minutes after the encounter began, and just as it was about to end? Asked more plainly, did Deputy Seeman have the right to pick up the appellant's purse and search it before handing it to her so she could leave? We conclude that, while this was not the typical fact pattern that leads to a Terry "stop and frisk," Deputy Seeman did, at the time of the search, have reasonable suspicion that the appellant was engaged in criminal activity, and Deputy Seeman did, at the time of the search, have reasonable apprehension as to officer safety. An officer safety concern does not necessarily exist at only one precise moment in time during an investigative detention, and we believe the rationale of Terry would allow a limited search for weapons at any time during that detention that the officer safety concern becomes apparent.

Public safety stop as a secondary reason must be based on articulable reasonable suspicion of illegal activity. The stop here was not, so the search was suppressed. State v. McCaddon, 39 Kan. App. 2d
839, 185 P.3d 309 (2008).*

Defendant's flight after stop from a vehicle not registered to him justified his pursuit and it was not a violation of the Fourth Amendment. Cardelus v. State, 985 So. 2d 1144 (Fla. App. 5th DCA 2008):

A number of Florida decisions have ruled that flight alone does not provide a sufficient basis upon which to form a reasonable suspicion of criminal activity to justify an investigatory stop. See J.R.P. v. State, 942 So. 2d 452, 454 (Fla. 2d DCA 2006); J.D.H. v. State, 967 So. 2d 1128, 1132 (Fla. 2d DCA 2007); State v. Lennon, 963 So. 2d 765, 769 (Fla. 3d DCA 2007). While there was no evidence that the events in the instant case occurred in a high crime area, as in Wardlow, there were other factors beyond mere flight to justify pursuit and investigation. In particular, Livingston abandoned a vehicle he clearly did not own on a public street.

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"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)

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"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]

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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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