{"id":6461,"date":"2012-02-26T11:23:17","date_gmt":"2011-12-26T00:21:59","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2011-12-25T19:12:50","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=6461","title":{"rendered":"PA: Detention on RS to get a search warrant was unreasonable"},"content":{"rendered":"

A detention on reasonable suspicion cannot be used as time to get a search warrant because there wasn\u2019t any probable cause to get a search warrant. Commonwealth v. Joseph<\/a>, 2011 PA Super 273, 34 A.3d 855 (2011):<\/p>\n

In its reliance on Terry<\/a>, however, [in Commonwealth v. Chase<\/a>, 599 Pa. 80, 960 A.2d 108 (2008),] our Supreme Court emphasized that the nature of the stop in question was \u201cto allow immediate investigation through temporarily maintaining the status quo.\u201d Id. at 94, 960 A.2d at 115-16. The focus on the temporal nature of a Terry-type stop is important: \u201c[O]ne must remember the reason why the Constitution tolerates the lesser standard articulated in Terry [i.e., reasonable suspicion] \u2014 the detention is allowed to maintain the status quo so the officer may conduct a brief and safe investigation to see if indeed there is criminal activity afoot.\u201d Id. (emphasis added). Specifically, the Supreme Court described the limited scope of the police officer\u2019s investigative authority: \u201cIn a Terry stop, the officer may ask the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer\u2019s suspicions.\u201d Id. at 101-02, 960 A.2d at 120 (quoting Commonwealth v. Mistler<\/a>, 590 Pa. 390, 411, 912 A.2d 1265, 1277 (2006) (Eakin, J., dissenting) (quoting Berkemer v. McCarty<\/a>, 468 U.S. 420, 439, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984)).<\/p>\n

The issue in the case sub judice, of course, is not the propriety of the initial stop of Joseph\u2019s vehicle, as Trooper Yingst clearly had a reasonable suspicion that Joseph had violated traffic laws (including driving under the influence). Instead, the issue here is the constitutionality of Trooper Yingst\u2019s seizure of Joseph\u2019s vehicle during the course of the traffic stop. To this end, the record on appeal contains no evidence regarding the length of time that would have been required for the troopers to obtain a warrant (including the drafting of an affidavit, its presentation to a magistrate, and then a return to the scene for service). As such, we cannot agree that Trooper Yingst\u2019s seizure of Joseph\u2019s vehicle while attempting to obtain a warrant constituted a \u201cbrief\u201d Terry-type investigation. See, e.g., United States v. Place<\/a>, 462 U.S. 696, 708, 103 S. Ct. 2637, 77 L. Ed. 2d 110 (1983) (\u201cThe length of detention of respondent\u2019s luggage [90 minutes] alone precludes the conclusion that the seizure was reasonable in the absence of probable cause.\u201d). For these reasons, of this we conclude that seizure of a vehicle for an indeterminate amount of time while the police attempt to obtain a search warrant cannot be constitutionally justified as a \u201cTerry stop\u201d based upon mere reasonable suspicion.<\/p><\/blockquote>\n

[Note: What gets me is the state arguing with a straight face that they could detain on reasonable suspicion to get a search warrant which requires probable cause to be issued. And, obviously, a search warrant would never have been issued, if this had gone that far.]<\/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-6461","post","type-post","status-publish","format-standard","hentry"],"_links":{"self":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/6461","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=6461"}],"version-history":[{"count":0,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/6461\/revisions"}],"wp:attachment":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=6461"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=6461"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=6461"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}