Post details: N.D.Ohio: Reasonable belief person named in arrest warrant is required for entry, but here it was lacking
11/27/09
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, 2009 U.S. App. LEXIS 25438 (11th Cir. November 18, 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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