{"id":3337,"date":"2009-12-24T08:37:26","date_gmt":"2009-08-25T09:01:54","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2009-08-25T09:01:54","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=3337","title":{"rendered":"CA6: Acquitted 1991 state search admissible in later conspiracy prosecution"},"content":{"rendered":"

Two searches from 1991 and 1998 were admitted into evidence in defendant’s conspiracy trial. He was acquitted in the 1991 case in state court, but the evidence was admissible in a separate proceeding in federal court because it involved a separate sovereign. The 1998 search was a search incident that was valid then and at the time of trial, and the 2009 decision in Gant<\/a> would not be applied to this in plain error review. United States v. Deitz<\/a>, 577 F.3d 672, 2005 FED App. 03410P (6th Cir. 2009).<\/p>\n

As to the 1991 search and acquittal:<\/p>\n

However, the complex conspiracy at issue in Count 1 of the superseding indictment encompasses substantially different elements from those at issue in the violation of Kentucky statutes prohibiting possession of and trafficking in controlled substances. See United States v. Clark, 254 F. App’x 528, 532-33 (6th Cir. 2007) (rejecting plaintiff’s sham-prosecution argument where the state prosecution for simple drug possession was different in nature from the federal drug-conspiracy charge). Also, nothing in the record suggests that Kentucky authorities “did not make their own determinations” regarding whether to prosecute Deitz following the 1991 seizure. Id. (rejecting defendant’s sham-prosecution argument where “‘the separate sovereigns have made independent decisions to prosecute'”) (quoting United States v. Angleton, 314 F.3d 767, 774 (5th Cir. 2002)). Therefore, we reject Deitz’s Double Jeopardy argument.<\/p><\/blockquote>\n

The 1998 search incident with plain error review:<\/p>\n

In 1998, an unwarranted search incident to a custodial arrest constituted an exception to the warrant requirement of the Fourth Amendment where the search was necessary to assure an officer’s safety or preserve evidence. See United States v. Robinson, 414 U.S. 218, 235, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973). Thus, at the time of the incident in question, police could lawfully search an arrestee and the area “within his immediate control”–meaning the area from which he might gain possession of a weapon or destructible evidence. See Chimel v. California, 395 U.S. 752, 763, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969). However, on April 21, 2009, the Supreme Court clarified its previous rulings on this issue. See Arizona v. Gant, 129 S. Ct. 1710, 1713, 173 L. Ed. 2d 485 (2009). In Gant, the Court held that authorities may not conduct an unwarranted search of the passenger compartment of a vehicle unless “it is reasonable to believe that the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of arrest.” Id. at 1713. Under Gant, the officers’ warrantless search of Deitz’s briefcase violated his Fourth Amendment rights because the officers had no reason to suspect that the briefcase contained evidence related to the offense of arrest–Deitz’s failure to show proof of insurance. Nevertheless, at the time the officers stopped Deitz in 1998, they could lawfully search the articles within Deitz’s control that might contain destructible evidence. See Chimel, 395 U.S. at 763; see also Atwater v. City of Lago Vista, 532 U.S. 318, 121 S. Ct. 1536, 149 L. Ed. 2d 549 (2001) (holding that a custodial arrest for minor traffic infraction did not violate the Fourth Amendment). Therefore, no plain error occurred, and Deitz’s Fourth Amendment argument is without merit.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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