{"id":3218,"date":"2009-12-23T16:59:07","date_gmt":"2009-06-30T08:17:19","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2009-06-30T08:17:19","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=3218","title":{"rendered":"S.D. N.Y.: PC for a vehicle search makes Gant<\/em> irrelevant to case"},"content":{"rendered":"

Threat to arrest a pawnshop operator (a closely regulated business) for refusing to open the safe during an administrative search was facially unreasonable, so the officer has no qualified immunity. 5 Borough Pawn v. City of New York, 2009 U.S. Dist. LEXIS 54069 (S.D. N.Y. June 22, 2009)*:<\/p>\n

Clearly no reasonable officer could have thought that he was privileged to arrest a pawnshop owner who refused to allow him into a closed and locked safe without a warrant. The New York Court of Appeals’ decision in Keta and the Grasso Memo–which was official NYPD policy–make it perfectly clear that police officers are not privileged, under the New York State Constitution, to invade safes without a warrant. Marti, like every other NYPD officer, is presumed to know about Keta and the Grasso Memo, and so to know that he was not privileged to arrest a pawnshop owner or employee for doing what Cabrera did. The Grasso memo is quite clear–an officer is not allowed to make an arrest in such a situation. The memo authorizes an officer to issue a citation, secure the premises, and obtain a warrant if he has probable cause to believe that the safe contains stolen property. Marti did none of these things. Instead, he made an arrest–the one thing he was explicitly not allowed to do.<\/p>\n

Since Marti allegedly disobeyed express instructions (i.e., the Grasso memo) about what state law requires in the situation he confronted, neither probable cause nor arguable probable cause for the arrest exists, and Marti’s motion for summary judgment declaring that he is shielded by qualified immunity for the First Arrest is denied.<\/p><\/blockquote>\n

The officers had PC for a vehicle search based on their surveillance, so Gant<\/a> has no application. United States v. Almaraz, 2009 U.S. Dist. LEXIS 54138 (S.D. N.Y. June 26, 2009).*<\/p>\n

The stop in this case was not unreasonably extended. The officer’s questioning during the writing of the ticket led to answers that were more hesitant and gave reasonable suspicion. United States v. Suitt<\/a>, 569 F.3d 867 (8th Cir. 2009).*<\/p>\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-3218","post","type-post","status-publish","format-standard","hentry"],"_links":{"self":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/3218","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=3218"}],"version-history":[{"count":0,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/3218\/revisions"}],"wp:attachment":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=3218"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=3218"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=3218"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}