Defendant showed a substantial enough question for appeal on the legality of a protective sweep that led to a plain view, so he gets bail pending appeal. United States v. Roark, 2019 U.S. Dist. LEXIS 198264 (W.D. Tex. Nov. 15, 2019):
Applying this standard, the Court believes that the suppression issue Roark has preserved for appeal is a “substantial question.” The evidence and argument to support the district judge’s denial of the motion to suppress is well articulated in the judge’s order. See Dkt. No. 53. But as noted in the motion for bond pending appeal, there is room for argument regarding the justification the police officers offered for conducting the protective sweep they performed on Roark’s residence. The Government’s argument, accepted by the district judge, was that Roark’s yelling when officers brought him toward his apartment, combined with what was known about Roark and his affiliations, created exigent circumstances that would lead a reasonable officer to believe that the apartment harbored one or more individuals who posed a danger to those on the arrest scene. This question is debatable, given the evidence from the body cameras of several of the officers at the scene. For example, Roark was arrested well away from his apartment, the apartment was on the second floor and he was on the ground level (in custody and handcuffs), while there was at least one, if not two, officers immediately in front of the apartment door, making it difficult for anyone in the apartment to exit the apartment, access the stairway, and approach the arrest scene—which was one floor below. It was the officers who approached the apartment, knocked on the door, and confronted the other occupant of the apartment. No one in the apartment ever attempted to exit prior to this. The body camera video also creates a substantial question regarding whether the lead officer was well aware that Roark’s yelling was primarily a request for his girlfriend to call his attorney, as the officer stated more than once in phone conversations with the officer who drafted the warrant that Roark was telling his girlfriend to “call his lawyer, to call George.” This is potentially inconsistent with the officer’s testimony that he understood Roark’s yelling as a request for “confederates” to come to his aid or to interfere with the arrest. Further, the demeanor of each officer who was at the residence door prior to the protective sweep was arguably inconsistent with an officer who feared for his safety because he believed there might be confederates in the apartment intending to intervene in the arrest or approach the arrest scene. Instead, the officers all appeared relaxed, and calmly chatted with Roark’s girlfriend while they awaited instructions on whether to enter the apartment.
Finally, there is no real dispute that, if the question is decided the other way on appeal, it is likely to result in either a reversal or an order for a new trial. Roark was convicted, after a conditional plea of guilty, of being a felon in possession of firearms and ammunition, in violation of 18 U.S.C. § 922(g)(1). The firearms and ammunition were discovered as a result of being seen by the officers who conducted the protective sweep, and that information was the probable cause that led to the search warrant the officers obtained to seize the weapons. If the protective sweep was unconstitutional, it seems clear that the evidence seized pursuant to the warrant would constitute proverbial “fruit of the poisonous tree” and therefore be subject to suppression. See Nardone v. United States, 308 U.S. 338, 341, 60 S. Ct. 266, 84 L. Ed. 307 (1939). Without that evidence, the Government’s case is seriously, if not fatally, impaired.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)