{"id":3439,"date":"2010-03-26T06:28:19","date_gmt":"2009-10-13T06:29:31","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2009-10-13T06:29:31","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=3439","title":{"rendered":"E.D.N.Y.: While a SI under Gant<\/em> may not be proper, special exigencies may permit it (the terrorism card trumps the Fourth Amendment?)"},"content":{"rendered":"

Under Gant<\/a>, the search incident of defendant’s backpack was unreasonable because he was handcuffed and could not access it. Under Second Circuit authority, “exigent circumstances [can] justify a warrantless search of a closed container only when the police have reason to believe a container is concealing a dangerous instrumentality and that the hidden danger poses an imminent threat to either the arresting officers or the surrounding public.” Here, the police did not have that either. “Special exigencies” may permit it. United States v. Morillo, 2009 U.S. Dist. LEXIS 94396 (E.D. N.Y. October 9, 2009), USMJ R&R 2009 U.S. Dist. LEXIS 94421 (E.D. N.Y. August 12, 2009):<\/p>\n

Even without exigent circumstances, “[t]here may be cases in which the special exigencies of the situation would justify the warrantless search of a suitcase.” Arkansas v. Sanders<\/a>, 442 U.S. 753, 763 n.11. The Supreme Court in Chadwick noted that “there may be other justifications for a warrantless search of luggage taken from a suspect at the time of his arrest; for example, if officers have reason to believe that luggage contains some immediately dangerous instrumentality, such as explosives, it would be foolhardy to transport it to the station house without opening the luggage and disarming the weapon.” 433 U.S. at 15 n.9 (citing Johnson, 467 F.2d at 639).<\/p>\n

The circumstances of this case fit squarely into this justification for conducting a warrantless search of luggage. Morillo’s furtive and evasive behavior gave the officers reason to believe he was hiding something potentially dangerous in his backpack at the time of his arrest. Officer Finnegan testified that “I need to know what’s — what’s in that backpack and also what’s going in my car as I transport it to the stationhouse.” (July 2, 2009 Tr. 10-11.) According to Officer Finnegan, this was necessary for the safety of himself, his partner, the prisoner and the people around. (See R & R 11.)<\/p>\n

Based on the information that they knew at the time of Morillo’s arrest, Officers Lancer and Finnegan had reason to believe that Morillo was hiding a dangerous instrumentality in his backpack. Morillo had fled on his bicycle, continued fleeing on foot after crashing his bicycle, and then resisted arrest. This was in response to the officers’ request for identification and their statement that the stop was directed at Morillo riding his bicycle on the sidewalk. Morillo’s disproportionate response–attempting to avoid potential liability for violating the New York City Administrative Code by exposing himself to further criminal liability during the course of his failed get-away-properly gave the officers reason to suspect that Morillo fled and resisted arrest because he did not want a greater wrong uncovered.<\/p>\n

Because police officers, in this age of terrorist-related threats, are on their guard for suspicious packages and furtive behavior in public places, Officers Lancer and Finnegan reasonably could have thought that Morillo was fleeing from a potential search of his own backpack. The circumstances in this case, therefore, justified the officers’ steps to affirm their suspicions by opening Morillo’s backpack before transporting it in their police car.<\/p><\/blockquote>\n

“[T]he police received information about a reported domestic violence incident involving one man and one woman in a residence at the end of a dead-end street, and minutes later happened upon a car containing one man and one woman driving away from that dead-end. The totality of these circumstances justifies a brief investigative detention in order to ascertain whether the individuals in the car were those involved in the reported criminal activity.” United States v. Delano<\/a>, 348 Fed. Appx. 258 (9th Cir. 2009) (unpublished).*<\/p>\n

A protective sweep of a motel room was justified because of the number of people seen coming and going from in there. United States v. Carrillo, 2008 U.S. Dist. LEXIS 110320 (C.D. Cal. October 30, 2008).*<\/p>\n

A search incident of defendant’s van towed to the police station for search was invalid under Gant<\/a>. Aldin v. State<\/a>, 21 So. 3d 68, 34 Fla. L. Weekly D 2046 (Fla. 3 DCA 2009).<\/p>\n","protected":false},"excerpt":{"rendered":"

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