{"id":3146,"date":"2009-12-24T08:06:48","date_gmt":"2009-05-20T06:59:54","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2009-05-20T06:59:54","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=3146","title":{"rendered":"MA: Detention to run warrants without RS was unreasonable"},"content":{"rendered":"

FIO (Field Interrogation Observation) amounted to a stop and a seizure when the officers retained defendant’s ID without reasonable suspicion to run a warrant check. Commonwealth v. Lyles<\/a>, 453 Mass. 811, 905 N.E.2d 1106 (2009):<\/p>\n

In a case that is factually analogous to the present one, the Supreme Court of Tennessee in State v. Daniel, 12 S.W.3d 420, 427-428 (Tenn. 2000), concluded that a defendant was seized within the meaning of the Fourth Amendment to the United States Constitution and art. I, \u00a7 7, of the Tennessee Constitution when, after requesting and examining the defendant’s identification, a police officer retained the identification to run a computer check for outstanding warrants. The court stated that the officer’s conduct in merely approaching the defendant, inquiring what was going on, and asking to see his identification did not constitute a seizure because it appeared that this encounter was not accompanied by physical force or a show of authority. Id. at 427. It was the officer’s retention of the defendant’s identification to run a computer check for outstanding warrants that, in the court’s view, transformed a consensual police-citizen encounter into a seizure of the defendant. Id. The Supreme Court of Tennessee cogently recognized, as do we here, that an individual is effectively “immobilized” without his identification, and that abandoning one’s identification is not a practical or realistic option. Id. As such, the court opined, no reasonable person would believe that he could simply terminate the encounter by asking the officer to return the identification. Id. See United States v. Jordan, 958 F.2d 1085, 1087-1088, 294 U.S. App. D.C. 227 (D.C. Cir. 1992) (holding that, for purposes of Fourth Amendment, retention of defendant’s driver’s license during police questioning constituted seizure); People v. Mitchell, 355 Ill. App. 3d 1030, 1034-1035, 824 N.E.2d 642, 291 Ill. Dec. 786 (2005) (concluding that officer’s retention of defendant’s identification to run computer warrant check following consensual police-citizen encounter constituted seizure within meaning of Fourth Amendment); Salt Lake City v. Ray, 998 P.2d 274, 278, 2000 UT App 55 (Utah Ct. App. 2000) (same). See also 4 W.R. LaFave, Search and Seizure \u00a7 9.4(a), at 428 & n.81 (4th ed. 2004) (collecting cases where encounter becomes seizure when law enforcement official holds individual’s identification papers or other property).<\/p>\n

Here, what began as a consensual police-citizen encounter matured into a seizure of the defendant, with respect to which the officers lacked reasonable suspicion of criminal activity. Given that Officer O’Connor’s knowledge of the outstanding warrant was the fruit of the defendant’s unlawful seizure, the evidence recovered from the defendant during the booking procedure must be suppressed, as required by art. 14. See note 1, supra. See also Commonwealth v. Borges, 395 Mass. 788, 795, 482 N.E.2d 314 (1985). Accordingly, we affirm the order allowing the defendant’s motion to suppress.<\/p><\/blockquote>\n

Officer came to the defendant’s door in Minnesota and smelled burning marijuana from smoking. When the door was answered and he asked about it, it was admitted that they were smoking marijuana inside. Even though the officer did not articulate it, the entry was justified by exigent circumstances for destruction of evidence. He told the woman on the couch to get up, and she didn’t. Later, a gun was found in the couch, and it was linked to a murder in Louisiana. State v. Robinson<\/a>, 2009 La. App. LEXIS 802 (4th Cir. May 13, 2009)* (no conflict of laws issue in this case).<\/p>\n

Defendant was arrested for murder while driving his car, and officers found a note in the car which could be seen through the window which was pertinent to the investigation, so it could be seized under the plain view doctrine. State v. Bauman<\/a>, 15 So. 3d 177 (5th Cir. 2009).*<\/p>\n

Second protective sweep 15-20 minutes after first one ended was not objectively reasonable. While a “one sweep rule” is not the law, there must be an objective basis for the second sweep, and here there was none. Commonwealth v. Peters<\/a>, 453 Mass. 818, 905 N.E.2d 1111 (2009):<\/p>\n

There undoubtedly are circumstances in which two warrantless protective sweeps of a home in quick succession, one rapid without attention to detail to locate a potential assailant or assailants, and the second more deliberate in search of persons who may be injured, would both fall within the permissible scope of the emergency aid exception. We do not declare a “one sweep rule” through this decision. A second warrantless protective sweep may be lawfully conducted but only when, in light of all the circumstances known to the officers at the time, there continues to be an objectively reasonable basis to believe that there is someone in the home in need of assistance. We simply do not find that there continued to be an objectively reasonable basis here.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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