Defendant’s being out of the vehicle for potentially hours denied the government any reliance on search incident because he was not a “recent occupant.” Moreover, reliance on the automobile exception was denied, essentially because of staleness of the facts. United States v. Gable, 2007 U.S. Dist. LEXIS 39854 (M.D. Tenn. May 31, 2007):<\/p>\n
Here, the proof does not establish the amount of time that had passed since Gable left his truck and the officers’ arrival at Vines’s residence. Given Vines’s descriptions of the incident and Gable’s prior conduct, the passage of time could be an hour or several hours. When the officers arrived, Gable was inside Vines’s residence, where he was arrested. The Court concludes that the government has not established the facts necessary to invoke the Thorton rule requiring the defendant to have been a ‘recent occupant’ of the searched vehicle.<\/p>\n
As to the search incident to probable cause, the government relies upon United States v. Swanson<\/em>, 341 F.3d 524, 532-33 (6th Cir. 2003) and Smith v. Thornburg<\/em>, 136 F.3d 1070, 1074 (6th Cir. 1998). In Swanson<\/em>, the vehicle was used as an instrument of a crime and therefore, as a matter of law, was subject to seizure and search without a warrant. 341 F.3d at 532-33. (“First, the agents had probable cause to seize and search the vehicle. [The defendant] had used the Grand Am to deliver an automatic weapon thirty days earlier to a confidential informant …”). In Smith<\/em>, this rule was held to apply to a warrantless search of a “readily mobile vehicle”. 136 F.3d at 1074. Gable’s vehicle was parked and Gable was inside Vines’s residence. Gable was initially in Vines’s residence and at the time of the search was handcuffed in Mashburn’s vehicle. There is not any proof that the Gable’s vehicle was “readily mobile”. Thus, Gable’s truck was “readily mobile” when Mashburn searched the truck for a weapon. Thus, the Court concludes that Swanson and Smith are factually inapposite and the search incident to probable cause doctrine is inapplicable here.\n<\/p><\/blockquote>\n
Officer’s failure to comply with Oregon law in informing a suspect he had a right to refuse consent was not relevant in federal court. United States v. Villanueva-Madriz, 234 Fed. Appx. 454 (9th Cir. 2007)* (unpublished).<\/p>\n
Existence of a bench warrant saves the arrest as justified on probable cause, but material facts remain on whether the officer knew about it. Grindling v. Silva, 2007 U.S. Dist. LEXIS 39866 (D. Haw. May 30, 2007):<\/p>\n
Defendant states in his declaration that Plaintiff also was arrested on an outstanding bench warrant, but, according to Plaintiff, that bench warrant did not come to light for another six hours. The existence of a bench warrant of which officers are not aware at the time of an arrest will not retroactively justify the arrest. See Moreno v. Baca<\/em>, 431 F.3d 633, 638-41 (9th Cir. 2005). Thus, the bench warrant would “save” the arrest only if Defendant was aware of it at the time of the arrest. Defendant’s knowledge of the bench warrant is unclear at this time.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"
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