{"id":1747,"date":"2008-04-08T09:32:42","date_gmt":"2008-02-01T17:35:17","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2008-02-01T17:35:17","slug":"en-US","status":"publish","type":"post","link":"https:\/\/fourthamendment.com\/?p=1747","title":{"rendered":"Search of shoes during a frisk for weapons was unreasonable"},"content":{"rendered":"

The officer exceeded the scope of a proper Terry<\/em> frisk when the defendant’s shoes were searched, too, without any reasonable suspicion. State v. Morton<\/a>, 2008 Iowa App. LEXIS 44 (January 30, 2008):<\/p>\n

Sergeant Skaff’s search went beyond a patdown of Morton’s outer clothing. Skaff first patted down Morton’s outer clothing and checked Morton’s waist band for sharp objects. This part of the search is permitted by Terry and is reasonably related to ensuring Morton was not armed and dangerous. Skaff then asked Morton to take his cap off and kick his shoes off. Removing a suspect’s shoes without a reasonable belief that a weapon is being hidden in the shoes has been held to exceed the proper scope of a protective search. [citations omitted]<\/p><\/blockquote>\n

Defendant’s claim of standing even under Massachusetts’ automatic standing rule failed. Commonwealth v. Duncan<\/a>, 71 Mass. App. Ct. 150, 879 N.E.2d 1253 (2008):<\/p>\n

Thus, it was the defendant’s burden to prove both that he had a subjective expectation of privacy in the trash can and that society would recognize this expectation as reasonable. See Commonwealth v. Montanez<\/em>, 410 Mass. 290, 301 (1991); Commonwealth v. Nattoo<\/em>, 70 Mass. App. Ct. 625, 630 (2007). The defendant carried neither of these burdens. There was no evidence that Duncan (or the others) had any possessory interest in the trash can or in the property where it was situated. See Commonwealth v. Sespedes<\/em>, 58 Mass. App. Ct. 907, 909 n.3 (2003). To the contrary, the evidence indicated that the defendants chose to abandon or hide the guns in a place over which they did not control access. See Commonwealth v. Straw<\/em>, 422 Mass. 756, 761-762 (1996) (citing cases). Thus, for constitutional purposes, no search of the trash can took place, and the motion to suppress was properly denied.<\/p><\/blockquote>\n

Plaintiff stated a claim for relief under \u00a7 1983 for police entry onto his property to seize vehicles without any kind of warrant or other judicial authorization. Hardy v. County of El Dorado, 2008 U.S. Dist. LEXIS 6417 (E.D. Cal. January 28, 2008).*<\/p>\n","protected":false},"excerpt":{"rendered":"

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