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Post details: Protective weapons search that admittedly was for drugs, too, was unreasonable

04/22/07

08:28:33 am, by fourth, 638 words, 528 views

Categories: General

Protective weapons search that admittedly was for drugs, too, was unreasonable

Terry weapons search was admitted by the officer to be for "drugs or weapons" so it was unreasonable. State v. Hackett, 2007 Ohio 1868, 171 Ohio App. 3d 235, 870 N.E.2d 235 (6th Dist. 2007):

... The rationale for a protective search, however, becomes attenuated with successive searches. See Jackson v. State (Ind. App. 2003), 785 N.E. 2d 615, 620. Police are not entitled to "unlimited bites of the apple." U.S. v. Davis (C.A. 6, 2005), 430 F.3d 345, 357.

Here, the detective testified that the purpose of the search was to "find drugs *** or weapons." A protective search for weapons during an investigative search is acceptable to a point. When the use of multiple protective searches exceeds the rationale behind a Terry-type investigation it becomes unreasonable. Jackson at 621. Officers exceeded the scope of a protective search under Terry when they conducted multiple warrantless searches of appellant.

Defendant was given her paperwork back after a traffic stop and had her hands on the steering wheel, which suggests that she knew she was free to leave, when the officer asked if he could ask some questions, and she stayed and answered them. Reasonable suspicion then developed. United States v. Loera, 2007 U.S. Dist. LEXIS 29112 (N.D. Ind. April 16, 2007):

He gave Bennett a warning ticket and turned away from the car. According to Carmin, Bennett had her hands on the wheel and was ready to leave, thus suggesting that she thought she was free to go. Carmin then asked for permission to ask some additional questions, and Bennett consented. The second round of questioning, although unrelated to the traffic stop, was permissible and did not unreasonably prolong the stop. More importantly, Bennett voluntarily consented to the further questioning after she believed she was free to leave. See United States v. Finke, 85 F.3d 1275, 1281 (7th Cir. 1996) (encounter becomes consensual when a reasonable person would have believed he was free to go thus permitting questions unrelated to traffic stop); United States v. Rivera, 906 F.2d 319, 323 (7th Cir. 1990) (finding consent was voluntary where defendant was given written warning, identification and cue to leave).

Comment: I've said this before, so I'll keep it short here: I cannot accept that it is objectively reasonable that a person can ignore a police officer talking to him or her during a stop, even if the paperwork has been returned. Our social convention is that we respond, not ignore the officer and drive off, because we would be in fear of either disrepecting the officer or committing a further violation. The blue lights are still on, albeit for safety reasons. No reasonable person could objectively feel free to leave. This is a legal fiction, and the courts might just as well admit it.

Officer's testimony that defendant admitted to having a gun in the car and that the officer could smell marijuana was credited over the occupants of the car, and that justified the search. United States v. Watson, 2007 U.S. Dist. LEXIS 29074 (D. Neb. April 17, 2007).*

Plaintiff was stopped on a train platform because she resembled a female suspect in an earlier robbery by five youths on a train. The officer making the stop had a still photo from a video of the robbery, and the plaintiff was being viewed on CCTV and was dressed like the female suspect, including a ponytail. She stated a claim for unreasonable detention that was factbound enough to defeat qualified immunity. Williams v. Rosentreter, 2007 U.S. Dist. LEXIS 29106 (D. Ore. April 16, 2007).*

Iowa drug tax administrative search warrant was void because it did not state why there was a need for a jeopardy assessment, following Adams v. State, 762 N.E.2d 737, 744 (Ind. 2002). The defendant succeeded in suppressing the search in the underlying criminal case, and the tax assessment followed. The court did not hold the statute unconstitutional because there was another possible interpretation to save it. State v. Carter, 733 N.W.2d 333 (Iowa Sup. 2007).*

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Post details: Protective weapons search that admittedly was for drugs, too, was unreasonable

04/22/07

Protective weapons search that admittedly was for drugs, too, was unreasonable

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