{"id":1236,"date":"2008-05-23T18:21:52","date_gmt":"2007-08-11T09:50:24","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2007-08-11T09:50:24","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=1236","title":{"rendered":"D.C. Cir. joins others: reasonable mistake of fact will still support a stop"},"content":{"rendered":"

The D.C. Circuit has joined all others: a reasonable mistake of fact will support a stop while a mistake of law will not. Here, the stop was objectively reasonable for improper display of a temporary license tag. United States v. Booker<\/a>, 378 U.S. App. D.C. 126, 496 F.3d 717 (2007):<\/p>\n

A finding of reasonable suspicion does not demand “a meticulously accurate appraisal” of the facts. United States v. Coplin<\/em>, 463 F.3d 96, 101 (1st Cir. 2006). Indeed, “[s]tops premised on mistakes of fact … generally have been held constitutional so long as the mistake is objectively reasonable.” Id<\/em>. (although defendant’s driver’s license valid, traffic stop objectively reasonable because police cruiser computer indicated license suspended); see also United States v. Miguel<\/em>, 368 F.3d 1150, 1153-54 (9th Cir. 2004) (although vehicle properly registered, traffic stop objectively reasonable because police cruiser computer indicated registration expired). …<\/p>\n

. . .<\/p>\n

Unlike stops premised on mistakes of fact, “[s]tops premised on a mistake of law, even a reasonable, good-faith mistake, are generally held to be unconstitutional.” Coplin,<\/em> 463 F.3d at 101; see also United States v. McDonald,<\/em> 453 F.3d 958, 961-62 (7th Cir. 2006); United States v. Cole<\/em>, 444 F.3d 688, 689 (5th Cir. 2006). …<\/p><\/blockquote>\n

Seventeen month old information about purchases off a child porn website was stale, but the officer was justified in relying on the search warrant. United States v. Doan<\/a>, 245 Fed. Appx. 550 (7th Cir. 2007)* (unpublished). Comment:<\/em> This opinion at first confused me. The court holds that there is no probable cause because the information was stale based on the way it was presented, yet it holds that the officer was justified in relying on it because it was reasonable to believe that those who possess child pornography keep it. But, the court is seeking to compel officers to provide more information to the issuing judge to make a more informed determination. Doing it in an unpublished opinion does not inform the police.<\/p>\n

We are not holding that a warrant with seventeen-month-old information would per se lack probable cause. See United States v. Koelling<\/em>, 992 F.2d 817, 822 (8th Cir. 1993) (“There is no bright-line test for determining when information is stale. … Time factors must be examined in the context of a specific case and the nature of the crime under investigation.”). “Probable cause is a fluid concept–turning on the assessment of probabilities in particular factual contexts–not readily, or even usefully reduced to a neat set of legal rules,” Illinois v. Gates<\/em>, 462 U.S. 213, 232, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983). Therefore, the older the information is regarding child pornography, the more necessary it is to include more detail concerning that information and concerning the person who is the subject of the investigation. Further, this is particularly important in the age where technology is advancing at an ever-increasing rate. In the context such as child pornography, it is incumbent upon law enforcement to provide as much information and facts as possible about the nature and characteristics of the individual. For the older information it is helpful to know the type of computer equipment and the internet access that an individual might possess. Also, the length of time that has passed since his last hit on a website, the duration and features of a subscription, and any other “specific facts and circumstances” may, in the aggregate, justify a search. Newsom<\/em>, 402 F.3d at 782.<\/p><\/blockquote>\n

Without a motion to dismiss or summary judgment, a denied plea of qualified immunity in a search case is not appealable. Elliot v. Lator<\/a>, 497 F.3d 644, 2007 FED App. 0309P (6th Cir. 2007).*<\/p>\n

2255 IAC claim for failure to present a search claim would lose on the merits of the search claim for lack of standing or inevitable discovery. United States v. Thomas, 2007 U.S. Dist. LEXIS 58077 (E.D. Wash. August 9, 2007).*<\/p>\n","protected":false},"excerpt":{"rendered":"

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