{"id":1455,"date":"2008-03-17T21:17:19","date_gmt":"2007-10-18T23:51:50","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2007-10-19T07:18:15","slug":"en-US","status":"publish","type":"post","link":"https:\/\/fourthamendment.com\/?p=1455","title":{"rendered":"First search incident valid; second not contemporaneous"},"content":{"rendered":"

There were two searches incident to an arrest, the first being contemporaneous with the arrest and second occurring after plaintiff was taken away. The second was invalid, and the officer had no qualified immunity. Brown v. Fisher<\/a>, 251 Fed. Appx. 527 (10th Cir. 2007) (unpublished):<\/p>\n

Here, the district court cited Belton<\/em><\/a> and Thornton<\/em><\/a>, but not Lugo<\/em>. Of more concern, the district court did not distinguish between Fisher’s search of Brown’s vehicle and Weber’s search of Brown’s vehicle. The court stated: “Fisher had probable cause to arrest plaintiff, who was a recent occupant of the vehicle. It was therefore reasonable for the officers to search the passenger compartment.” (R. Vol. I, Doc. 40 at 11.) The court’s conclusion in this regard glosses over the fact that the two searches were not contemporaneous. Fisher searched Brown’s vehicle immediately after placing Brown in his patrol car, in order to retrieve Brown’s billfold. Weber, on the other hand, did not search Brown’s vehicle until after Fisher and Brown had left the scene. Thus, viewing the disputed facts in the light most favorable to Brown, Fisher’s search was incident to a lawful arrest, under Brothers<\/em>, while Weber’s was not, under Lugo<\/em>.<\/p><\/blockquote>\n

Record supports that consent was voluntary despite drawn weapons at first. United States v. Arreola<\/a>, 250 Fed. Appx. 765 (8th Cir. 2007) (unpublished):<\/p>\n

Eduardo argues that his consent was nonetheless coerced because numerous law enforcement officers were present when he consented, and because they all drew their weapons when they entered the apartment. We disagree. The mere presence of multiple officers and weapons does not compel a finding that consent is involuntary. … The officers here never used their weapons to coerce Eduardo to give consent. They drew their weapons only when they first entered the apartment, and holstered them once the scene was secure. Eduardo has not identified any behavior by the officers designed to intimidate him or to force him to cooperate, and he signed a written form that granted them permission to search. The district court did not clearly err in finding that Eduardo’s consent was voluntary. <\/p><\/blockquote>\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-1455","post","type-post","status-publish","format-standard","hentry"],"_links":{"self":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/1455","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=1455"}],"version-history":[{"count":0,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/1455\/revisions"}],"wp:attachment":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=1455"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=1455"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=1455"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}