{"id":1349,"date":"2007-12-09T13:10:07","date_gmt":"2007-09-13T08:41:06","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2007-09-13T08:41:06","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=1349","title":{"rendered":"Defendant consented to entry, and officer could not stop him from going to his room because he was free to leave"},"content":{"rendered":"

Defendant was convicted of resisting a law enforcement officer, and it was based on his refusal to respond to the officers’ requirement that he stop in his own home. Defendant’s roommate brought police on a “standby” to defendant’s home to get his stuff. Defendant let them in and walked back to his room, and officers tried to stop him because of a hunch [no reason to believe] he had a gun back there. Their grabbing him was constitutionally unjustified in this case. Briggs v. State<\/a>, 873 N.E.2d 129 (Ind. App. 2007):<\/p>\n

The State does not dispute Briggs’s contention that when the officers entered his apartment, he “was not under arrest, [in] custody, or under suspicion for a crime.” Appellant’s Br. at 14. As such, their encounter was consensual, and Briggs remained free to disregard the officers, walk away, or even order them to leave his home. At trial, Officer Evans testified that he asked Briggs to stop walking toward the back bedroom because, “you know, it’s America. People have the right to keep and bear arms and I [didn’t] know what’s in that dark apartment.” Id<\/em>. at 26. Officer Evans got it half right: not only do Americans enjoy a constitutional right to keep and bear arms, but they also enjoy a constitutional right to be secure in their persons and private dwellings against unreasonable intrusions by government agents. Here, the officers detained Briggs based solely on a hunch that he could have a weapon in his bedroom. This amounted to an unreasonable seizure in violation of the Fourth Amendment. See State v. Atkins<\/em>, 834 N.E.2d 1028, 1033 (Ind. Ct. App. 2005) (“Officer safety is always a legitimate concern, but standing alone officer safety cannot form the basis for a valid investigatory stop.”), trans. denied. Therefore, we conclude that the officers were not lawfully engaged in the execution of their duties and reverse Briggs’s resisting law enforcement conviction for insufficient evidence.<\/p><\/blockquote>\n

A credible report that defendant had pointed a gun from his car made the car a virtual crime scene, and that justified a protective search of the car. (Alternatively, it was justified as a search incident.) State v. Glenn<\/a>, 140 Wn. App. 627, 166 P.3d 1235 (2007):<\/p>\n

\u00b612 Importantly, in each case, a \u201cdetermination of the reasonableness of an officer’s intrusion depends in some degree on the seriousness of the apprehended criminal conduct. An officer may do far more if the suspected misconduct endangers life or personal safety than if it does not.\u201d State v. Rice<\/em>, 59 Wn. App. 23, 27, 795 P.2d 739 (1990) (citing State v. McCord<\/em>, 19 Wn. App. 250, 253, 576 P.2d 892 (1978)). Additionally, \u201c[t]here is no constitutional violation in allowing a police officer to assume a citizen’s report has some basis when he is conducting an initial investigation of that complaint.\u201d State v. Rice<\/em>, 59 Wn. App. at 28.<\/p>\n

\u00b613 A stop based on a report of a weapon sighting is markedly different from investigative stops based on reports of drug-related activities or traffic infractions. The latter were held lawful based on the suspects’ furtive movements and the presence of a passenger or the need to return to the vehicle to facilitate the investigation. But here, because the police received a legitimate citizen’s report that a driver had pointed a gun from his vehicle, no furtive movements were necessary to justify the belief that Glenn’s suspected misconduct endangered the safety of the officers. …<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

b2evALnk.b2WPAutP Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"","ping_status":"pingsdone","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[],"tags":[],"class_list":["post-1349","post","type-post","status-publish","format-standard","hentry"],"_links":{"self":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/1349","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=1349"}],"version-history":[{"count":0,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/1349\/revisions"}],"wp:attachment":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=1349"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=1349"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=1349"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}