{"id":741,"date":"2007-09-17T19:55:23","date_gmt":"2007-01-26T07:40:15","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2007-01-26T07:40:15","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=741","title":{"rendered":"Officers taking witness statement sought consent to search which was refused; one left for the warrant and another stayed; then she consented. Remaining on premises pending the search warrant was reasonable under McArthur<\/em>"},"content":{"rendered":"

While investigating a homicide, the officers went to defendant’s apartment to talk to his girlfriend. They did not suspect the defendant was there. She agreed to talk to them at first, but she decided not to when consent was asked for. One officer left to get a search warrant, and the other stayed behind for fear she might destroy evidence. While there, she said that the defendant was hiding there and that she would consent to the search. The officer on the scene called the others back. The consent was valid and the search was reasonable under McArthur<\/em>. State v. Gay, 214 Ariz. 214, 150 P.3d 787 (2007):<\/p>\n

P9 In McArthur,<\/em> police refused to allow McArthur to reenter his home without a police escort for about two hours, while they obtained a warrant to search the home for drugs. 531 U.S. at 328-29, 121 S. Ct. at 948-49. When McArthur did enter, a police officer stood just inside the door and watched what McArthur did. Id.<\/em> at 329, 121 S. Ct. at 949. An Illinois appellate court upheld the trial court’s decision to suppress the drug evidence obtained after a search pursuant to the warrant. Id.<\/em> at 329-30, 121 S. Ct. at 949. The Supreme Court reversed. Id.<\/em> at 337, 121 S. Ct. at 953. In upholding the search, it relied on the exigent circumstances exception to the warrant requirement. Id.<\/em> at 331, 333, 121 S. Ct. at 950, 951. The Court considered four circumstances “in combination.” Id.<\/em> First, the police had probable cause to believe the residence contained contraband. Id.<\/em><\/p>\n

“Second, the police had good reason to fear that, unless restrained, McArthur would destroy the drugs before they could return with a warrant. . . .<\/p>\n

“Third, the police made reasonable efforts to reconcile their law enforcement needs with the demands of personal privacy. They neither searched the trailer nor arrested McArthur before obtaining a warrant. Rather, they imposed a significantly less restrictive restraint, preventing McArthur only from entering the trailer unaccompanied. They left his home and his belongings intact-until a neutral Magistrate, finding probable cause, issued a warrant. . . .<\/p>\n

“Fourth, the police imposed the restraint for a limited period of time, namely, two hours.”<\/p>\n

Id.<\/em> at 332, 121 S. Ct. at 950-51.<\/p>\n

P10 Gay’s challenge centers on the second and third circumstances announced in McArthur<\/em>. We conclude those requirements were met here. Because Gay and Fresby shared the apartment, it was reasonable for the detectives to believe there might be evidence incriminating Gay in the apartment, and Fresby might have incentive to destroy it. See McArthur,<\/em> 531 U.S. at 331, 121 S. Ct. at 950 (police claim of “specially pressing or urgent law enforcement need” must be “plausible”). Furthermore, the police made a reasonable attempt to accommodate Gay’s privacy by not searching the apartment until they had obtained a warrant. See id.<\/em> at 332, 121 S. Ct. at 950 (decision not to search prior to obtaining warrant a factor in reasonableness of temporary seizure). And Gay cannot raise any violation of Fresby’s privacy interests here. See State v. Papineau,<\/em> 146 Ariz. 272, 273, 705 P.2d 949, 950 (App. 1985) (“Only one whose own rights have been violated may seek the remedy of exclusion.”).<\/p><\/blockquote>\n

Reopening the suppression hearing, where the court orally suppressed, for admission of a transcript of a preliminary hearing in another court would not alter the outcome, so the motion to suppress remains granted for lack of reasonable suspicion. United States v. Pinckney, 2007 U.S. Dist. LEXIS 4624 (D. D.C. January 23, 2007). The court relates the standard for reopening a suppression hearing where the government admits it erroneously failed to include the transcript without deciding whether the proffered reason was sufficient:<\/p>\n

“Motions to reconsider suppression orders or reopen suppression hearings rest with the sound discretion of the Court.” United States v. Dubose,<\/em> Criminal Action No. 05-372, 2006 WL 1876999, at *5 (D.D.C. July 5, 2006). Where a new submission suggests that suppressed evidence was lawfully obtained and casts doubt upon the suppression ruling, reconsideration might be appropriate. See United States v. Watson,<\/em> 391 F. Supp. 2d 89, 93-94 n.2 (D.D.C. 2005). In seeking to reopen the record, the government must “provide a reasonable explanation for its failure to present its proffered evidence initially at the first suppression hearing.” Id., <\/em>391 F. Supp. 2d at 94 n.3 (citing United States v. Kithcart,<\/em> 218 F.3d 213, 219-20 (3d Cir. 2000); McRae v. United States<\/em>, 420 F.3d 1283, 1289 (D.C. Cir. 1969).<\/p><\/blockquote>\n

Officers found out defendant’s name and address after raiding a child porn provider. They did a knock and talk, and defendant made some admissions, was reluctant to talk to them, and essentially lawyered up. Based on the admissions, the officers called defendant’s probation officer who quickly came and did a home search, and the PO seized the computer. The search was valid under Knights<\/em>, no matter what Florida law might have said [and it was not clear that it mattered]. United States v. Gomes, 2007 U.S. Dist. LEXIS 4625 (N.D. Fla. January 23, 2007).<\/p>\n

In a civil rights case, the detention for a dog sniff was de minimus, and the case is dismissed. The record showed that the dog was on the scene before the first officer completed his duties related to the stop. Hugueley v. Dresden Police Dep’t, 469 F. Supp. 2d 507 (W.D. Tenn. 2007).*<\/p>\n","protected":false},"excerpt":{"rendered":"

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