{"id":3191,"date":"2009-12-25T06:31:32","date_gmt":"2009-06-17T07:35:15","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2009-06-17T07:35:15","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=3191","title":{"rendered":"S.D.Tex.: Removing defendant from the highway to sheriff’s office violated Mendenall<\/em>"},"content":{"rendered":"

Removing defendant from the highway to the sheriff’s office after his stop was without reasonable suspicion and was a de facto arrest. United States v. Vega, 2009 U.S. Dist. LEXIS 49614 (S.D. Tex. June 11, 2009):<\/p>\n

The Court is highly sensitive to seizing an individual on a public road or in a public place and taking the suspect to the confines of a police station without consent and without probable cause. In Mendenhall<\/a>, the Supreme Court hinted that a similar removal of a suspect from a public location to a private location could offend the Fourth Amendment protections. United States v. Mendenhall<\/a>, 100 S.Ct. 1870, 1878 (1980) (stating that it is arguable that the suspect’s rights were violated when she was moved from the airport concourse to the DEA office).<\/p>\n

Under the present facts, Trooper Martinez acted unreasonably in relocating the defendant from a public location to the sheriff’s department. As stated above, reasonableness requires a balancing of the public interest with an individual’s right to be free from arbitrary intrusions by law enforcement. The seizure of an individual on a public road and removing him to the sheriff’s department, without consent or probable cause, is a severe intrusion upon that individual’s rights. The Court finds that under the present facts, this intrusion on Vega’s rights to travel and move freely far outweighed police interests. This seizure was tantamount to an arrest of the defendant. The government has not offered, and the Court has not found through its own research, any case law that would support this intrusive method of investigation.<\/p><\/blockquote>\n

Defendant was not prejudiced by defense counsel’s failure to challenge the protective sweep of his house. Although he was arrested outside, there were articulable facts there were others inside and guns present. He also consented. United States v. Berthelot<\/a>, 326 Fed. Appx. 795 (5th Cir. 2009)* (unpublished).<\/p>\n

The government showed that defendant voluntarily consented to the search of his computer for child porn. He was mature and he signed a consent form. The court finds as a fact that no threat was made to get him to consent. United States v. Gellinger, 635 F. Supp. 2d 859 (S.D. Ind. 2009).*<\/p>\n","protected":false},"excerpt":{"rendered":"

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