Post details: E.D.Mich.: Under Patane, a Miranda violation does not preclude using product to get a search warrant

11/07/09

Permalink 12:48:14 pm, by fourth, 573 words, 115 views   English (US)
Categories: General

E.D.Mich.: Under Patane, a Miranda violation does not preclude using product to get a search warrant

Defendant was on parole for felony eavesdropping as a peeping tom. He was encountered doing it again, and six police officers stopped him at 2 a.m. on his bicycle and questioned him, and he admitted to having videos of unsuspecting females on his computer. His admissions were used to get a search warrant, and child porn was found. His statement was custodial and he was not Mirandized, but, under Patane, it could be used to get a search warrant. United States v. Stark, 2009 U.S. Dist. LEXIS 101888 (E.D. Mich. November 2, 2009).*

Defendant did not really dispute the officer’s testimony that they knocked before entering, so it was not a violation of knock-and-announce. Also, Hudson forecloses relief. The officers also left a copy of the warrant and there is no requirement it be served before the search. United States v. Thompson, 667 F. Supp. 2d 758 (S.D. Ohio 2009)*:

The Court finds that no knock-and-announce violation occurred. Agent Beckman testified that the entry team knocked on the garage door, announced their presence, and waited before entering. Although she did not hear what the Agents were saying and thought someone was calling her name, Mrs. Thompson's testimony was consistent with the Agents' having announced their presence prior to entry. Moreover, even if the Court found that the executing agents failed to knock-and-announce their presence before executing the warrant, Thompson is not entitled to suppression because "[s]uppression is not a remedy for violation of the knock-and-announce rule." United States v. Roberge, 565 F.3d 1005, 1010 (6th Cir. 2009); see also Hudson, 547 U.S. at 594 (holding that the exclusionary rule does not apply to knock-and-announce violations). Therefore, Thompson's request for suppression on this ground is DENIED.

. . .

The Supreme Court and the Sixth Circuit have stated in dicta that neither the Fourth Amendment nor Rule 41 requires the executing officer to present a copy of the warrant before conducting the search. United States v. Grubbs, 547 U.S. 90, 98-99, 126 S. Ct. 1494, 164 L. Ed. 2d 195 (2006); Baranski v. Fifteen Unknown Agents of Bureau of Alcohol, Tobacco and Firearms, 452 F.3d 433, 443, 444 (6th Cir. 2006) (en banc) (same). In both Grubbs and Baranski, the executing agents presented a copy of the warrant to the defendant or the property owner shortly after the search began or upon request. Grubbs, 547 U.S. at 93 (defendant provided with copy of warrant 30 minutes into the search); Baranski, 452 F.3d at 436 (property owner's attorney shown copy of the warrant immediately upon request). In Groh v. Ramirez, however, the Supreme Court expressly left open the question directly raised in this case -- whether it would be unreasonable under the Fourth Amendment for an executing officer to refuse to produce a warrant at the outset of a search upon the request of an occupant. 540 U.S. 551, 562 n.5, 124 S. Ct. 1284, 157 L. Ed. 2d 1068 (2004) ("Whether it would be unreasonable to refuse a request to furnish the warrant at the outset of the search when, as in this case, an occupant of the premises is present and poses no threat to the officers' safe and effective performance of their mission, is a question that this case does not present."); see also Baranski, 452 F.3d at 442 (noting that the Groh court "left open only the possibility that it would be 'unreasonable' to decline such a request [to see a warrant at the outset of a search where the occupant is present]…).

Merely asking for ID is not compulsion under Bostick. United States v. Morales-Ruiz, 2009 U.S. Dist. LEXIS 101786 (M.D. Pa. November 2, 2009).*

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