{"id":835,"date":"2007-12-09T15:30:52","date_gmt":"2007-03-09T17:06:03","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2007-03-09T17:06:03","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=835","title":{"rendered":"Samson<\/em> does not apply to Kansas parole searches, and refusal to consent is not reasonable suspicion"},"content":{"rendered":"

(Cases really late again today, and court all day.)<\/p>\n

Samson<\/em> does not apply to Kansas parole searches because Kansas law is different. Reasonable suspicion is required. And, “[r]efusal to consent to a search–even agitated refusal–is not grounds for reasonable suspicion.” United States v. Freeman, 479 F.3d 743 (10th Cir. 2007):<\/p>\n

In Samson v. California,<\/em> 126 S. Ct. 2193 (2006), the Supreme Court extended the principle of Knights<\/em> to uphold a warrantless search of a parolee even in the absence of reasonable suspicion, where the parolee had signed a parole agreement that allowed parole officers or other peace officers to search the parolee “with or without a search warrant and with or without cause.” Id.<\/em> at 2196. The Court noted “that some States and the Federal Government require a level of individualized suspicion,” and strongly implied that in such jurisdictions a suspicionless search would remain impermissible. Id.<\/em> at 2201. Parolee searches are therefore an example of the rare instance in which the contours of a federal constitutional right are determined, in part, by the content of state law.<\/p>\n

We interpret the Griffin<\/em> line of cases, based on “special need,” as resting on the rehabilitative relationship between the parolee and the parole officer, and thus not extending to other law enforcement officers unless they are acting under the direction of the parole officer. We interpret the Knights-Samson<\/em> line of cases as resting on the parolee’s diminished expectation of privacy stemming from his own parole agreement and the state regulations applicable to his case. As we shall see, neither rationale justifies the search in this case.<\/p><\/blockquote>\n

Defendant was in a car with a wanted felon, and it was reasonable for the officers to order him out of the car at gunpoint and handcuff him. That was custody for Miranda<\/em> purposes, but a request for consent was not an interrogation for Miranda<\/em> purposes. A finding of consent under those circumstances here was not clearly erroneous. United States v. Curls, 219 Fed. Appx. 746 (10th Cir. 2007)* (unpublished):<\/p>\n

We discern no such error here. Mr. Curls’s argument amounts to the contention that the officers’ drawing of weapons and the use of handcuffs, even if reasonable under the Fourth Amendment, renders any subsequent consent involuntary. However, a number of decisions have rejected that view. See United States v. Guiterrez<\/em>, 92 F.3d 468, 471 (7th Cir. 1996) (stating that “while we understand that the circumstances at the truck yard-law enforcement officers brandishing weapons, handcuffing [the defendant], and ordering him up against a wall-were unpleasant, there is nothing so inherently coercive about such tactics . . . to render subsequent cooperation involuntary”) (internal quotation marks omitted); United States v. Hidalgo<\/em>, 7 F.3d 1566, 1571 (11th Cir. 1993) (concluding that consent was voluntarily given even though the defendant had been “arrested by SWAT team members who broke into his home in the early morning, woke him, and forced him to the ground at gunpoint”); United States v. Espinosa-Orlando,<\/em> 704 F.2d 507, 510, 513 (11th Cir. 1983) (concluding consent voluntarily given after four officers had drawn their weapons, asked the defendant to step away from his car, told him to lie on the grass, and asked for consent while he was on the ground and one officer still had his weapon drawn). Moreover, we note that Mr. Curls has cited no case law supporting his contention that the circumstances here were inherently coercive.<\/p>\n

We therefore conclude that because Mr. Curls consented to the search of the car, the district court did not err in denying his motion to suppress.<\/p><\/blockquote>\n

Wildlife officers investigating a violation of the Migratory Bird Act did not enter the curtilage of defendant’s home during the investigation. Assuming that there is a business curtilage, an issue not free from doubt, the court finds that his business curtilage was violated. The search, however, was not suppressed because enough was developed from the former search that there was probable cause and inevitable discovery. United States v. Zak, 476 F. Supp. 2d 29 (D. Mass. 2007).<\/p>\n

A school locker search was justified by reasonable suspicion based on a tip from a named informant. Roy v. Fulton County School District, 509 F. Supp. 2d 1316 (N.D. Ga. 2007).*<\/p>\n

Plaintiff stated a Franks<\/em> issue for a \u00a7 1983 case. Taylor v. Payne, 2007 U.S. Dist. LEXIS 15824 (E.D. La. March 5, 2007)*:<\/p>\n

After a review of the record, this Court finds a material discrepancy between the confidential informant’s testimony, and defendant Payne’s testimony. Defendant Payne’s observations of the alleged drug transactions taking place outside of the tire shop are in relevant part disputed by the confidential informant in her most recent deposition. The discrepancy is material because these observations were relied on in order to obtain the search warrant. <\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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