{"id":3213,"date":"2010-03-21T07:14:42","date_gmt":"2009-06-28T10:53:19","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2009-06-28T10:53:19","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=3213","title":{"rendered":"CA3: Running when officers pulled guns is not a seizure"},"content":{"rendered":"

Defendant did not submit to a show of force of the officer pointing a gun at a group on a porch and telling them to put their hands up. Instead, he reached for his waistband and then ran inside. The defendant’s failure to submit to the show of force was not a seizure. United States v. Waterman<\/a>, 569 F.3d 144 (3d Cir. 2009):<\/p>\n

Here, there was no application of physical force. The police drew their guns in a “show of authority.” While this act definitely constituted a display of force, we conclude that it fell short of the physical force required under Hodari D<\/a>. <\/p>\n

Similarly, there was no “submission” by Waterman. While the others on the porch raised their hands in compliance with the officers’ directive, Waterman failed to do so. Instead, he moved his hands toward his waistband, and ultimately retreated into the house.<\/p><\/blockquote>\n

The district court did not abuse its discretion in refusing to enforce a subpoena for all traffic stop records for the officer for view obstruction, for things hanging from the mirror. It would have provided only marginal impeachment. Defendant was otherwise shown to have consented to the search. United States v. Arciniega<\/a>, 569 F.3d 394 (8th Cir. 2009).<\/p>\n

The record supports the district court’s conclusion that defendant consented to the search. United States v. Mendoza<\/a>, 334 Fed. Appx. 515 (3d Cir. 2009) (unpublished).*<\/p>\n

There was reasonable suspicion for stopping defendant in the first place, so the bad record keeping issue involving Herring<\/a> need not be adressed. United States v. Bryant<\/a>, 334 Fed. Appx. 259 (11th Cir. 2009) (unpublished).*<\/p>\n

Defendant lacked “standing” to challenge either the officers’ entry into the apartment or the resultant search because he expressly disclaimed any subjective expectation of privacy in the apartment by telling the officers that he did not live there, was just visiting, and was unable consent to a search. United States v. Vasquez-Padilla<\/a>, 330 Fed. Appx. 883 (11th Cir. 2009) (unpublished).*<\/p>\n

Fact that base commander was involved in “cops and robbers” meetings where he was briefed on all ongoing investigations on the base did not make him neutral and detached for issuing a search authorization. Also, the fact he had not denied any of the prior 5-7 search requests did not show that he was not neutral and detached because there could have been PC in all of them. United States v. Hobbs<\/a>, 2005 CCA LEXIS 624 (A.F. Ct. Crim. App. October 26, 2005) [on Lexis today, go figure; listed as “published” on court’s website].<\/p>\n","protected":false},"excerpt":{"rendered":"

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