{"id":3449,"date":"2010-05-24T12:22:26","date_gmt":"2009-10-19T07:38:46","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2009-10-19T07:38:46","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=3449","title":{"rendered":"KS: Seizure of a cigarette pack under Terry<\/em> did not permit its search"},"content":{"rendered":"

Search of a cigarette packet seized for officer safety from defendant’s purse was unreasonable because the threat (also admittedly a close call) was neutralized by seizure. State v. Johnson<\/a>, 2009 Kan. App. LEXIS 849 (October 9, 2009):<\/p>\n

Here, by the time of the search and seizure, this defendant had offered Officer Tucker a plausible innocent explanation for her presence at the apartment, which was verified by the landlord. Tucker’s concerns were raised when the defendant retrieved the cigarette package after Tucker told the defendant not to reach in her purse. Tucker cited his previous experience with individuals who would hide razors in cigarette packages. However, such individuals were involved in drugs and prostitution, neither of which Tucker connected with this defendant. This leads us to the conclusion Tucker’s search of the cigarette package was an impermissible warrantless search.<\/p>\n

Our conclusion is supported by the United States Supreme Court’s recent decision in Arizona v. Gant<\/a>, 556 U.S. , 173 L. Ed. 2d 485, 129 S. Ct. 1710 (2009). Although Gant involved the vehicle-search-incident-to-arrest exception to the warrant requirement as formulated in New York v. Belton, 453 U.S. 454, 69 L. Ed. 2d 768, 101 S. Ct. 2860 (1981), this exception is partly justified by the same officer safety rationale that underlies the Terry exception at issue here. See Gant<\/a>, 173 L. Ed. 2d at 492-93. Concluding the vehicle-search-incident-to-arrest exception had been improperly broadened to allow a vehicle search incident to any arrest, the Supreme Court narrowed the exception by holding such warrantless searches are proper “only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.” 173 L. Ed. 2d at 501. Our Supreme Court recently relied on Gant in striking down part of Kansas’ warrantless-search-incident-to arrest statute, K.S.A. 22-2501(c). See State v. Henning, 289 Kan. 136, , 209 P.3d 711 (2009).<\/p><\/blockquote>\n

Because Colorado law on probation searches is “sparse,” the court discusses at length SCOTUS probation search cases and concludes that this search was valid. Police has a warrant for defendant for a gang related murder, and called his probation officer. The probation officer called defendant and went to his house and conducted a probation search for a weapon, finding gang colors and a .40 cal. bullet. The search was valid. People v. Samuels<\/a>, 228 P.3d 229 (Colo. App. 2009).*<\/p>\n

Defendant’s flight from detention after being confronted in an alley was not a seizure. United States v. Bandy, 2009 U.S. Dist. LEXIS 95466 (N.D. Ind. October 13, 2009).*<\/p>\n

Plaintiffs’ child suffered from cerebral palsy, and she had a paraprofessional who helped her use the bathroom at school. A bruise was seen, and the school was a mandatory reporter. There was no Fourth Amendment violation from seeing the bruise. S. L. v. Seymour R-2 Sch. Dist., 2009 U.S. Dist. LEXIS 95731 (W.D. Mo. October 14, 2009).*<\/p>\n

Gant<\/a> did not abrogate the vehicle exception. This search was valid under the vehicle exception because there was probable cause. United States v. Allen, 2009 U.S. Dist. LEXIS 95383 (E.D. Tenn. October 13, 2009).*<\/p>\n","protected":false},"excerpt":{"rendered":"

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