Post details: N.D.Ohio: Reasonable belief person named in arrest warrant is required for entry, but here it was lacking

11/27/09

Permalink 08:47:03 am, by fourth, 447 words, 152 views   English (US)
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N.D.Ohio: Reasonable belief person named in arrest warrant is required for entry, but here it was lacking

Officers lacked a reasonable belief under Payton that the subject of an arrest was at the address they felt he should be. United States v. Jett, 2009 U.S. Dist. LEXIS 108673 (N.D. Ohio November 20, 2009):

Payton and the widely-applied "reasonable belief" standard do not require officers to be certain that the subject of an arrest warrant resides in the home to be searched. Moreover, officers need not be correct as to the suspect's residence in the home. Valdez v. McPheters, 172 F.3d 1220, 1224-25 (10th Cir. 1999). Except for the Ninth Circuit, every circuit to address the issue has held that all Payton requires is a reasonable belief that the suspect resided in the home and could be found there at the time of the search. See Id. (collecting cases).

The information known to officers at the time of the search in the instant matter, however, was not sufficient to support a reasonable belief as to either fact. Despite their efforts, officers were never able to confirm that Tunanidas lived at 1334 Republic Avenue at the time of the search. The home was did not belong to Tunanidas. (Tr. at 9). Officer Giovanni testified that, although the home was listed on ChoicePoint as an address for Tunanidas, such listing does not necessarily indicate that Tunanidas had ever actually lived at that address. (Tr. at 6-7). On several occasions, officers received no response at the address when they attempted to confirm Tunanidas' residence there. (Tr. at 9). When shown a photo of Tunanidas, a neighbor could not positively identify him as a resident in the home. (Tr. at 9). In short, nothing besides the ChoicePoint listing and two 17-month-old arrest warrants indicated that Tunanidas lived at 1334 Republic Avenue.

District Court applied the wrong authority (Terry v. Ohio) to conclude that the seizure and search of plaintiffs in their apartment was valid. Applying the correct case (Maryland v. Garrison), the court concludes that the seizure and search were justified and summary judgment was properly granted for the officers. Harman v. Pollock, 586 F.3d 1254 (10th Cir. 2009),* prior appeal Harman v. Pollock, 446 F.3d 1069 (10th Cir. 2006).

Record supports district court’s finding of consent. United States v. Molina-Garcia, 353 Fed. Appx. 277 (11th Cir. 2009) (unpublished).*

“When an owner of a house leases it to someone, he no longer has an expectation of privacy in that house which society is prepared to recognize as legitimate. See, Miller v. Kunze, 865 F.2d 259, 1988 WL 138916 (6th Cir. 1988). Thus, Wards' leasing of the property to Barnett, either alone or in conjunction with Barnett's subletting of the property to Gamino-Villa and Vizcarra-Lopez, stripped him of any standing to contest the search of 750 Georgia Street.” United States v. Wards, 2009 U.S. Dist. LEXIS 107754 (E.D. Tenn. October 28, 2009).*

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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).

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Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)

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United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)

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Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).

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Arizona v. Hicks, 480 U.S. 321, 325 (1987)

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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)

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