{"id":5567,"date":"2011-12-28T12:52:20","date_gmt":"2011-05-19T07:53:00","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2011-05-19T07:53:00","slug":"en-US","status":"publish","type":"post","link":"https:\/\/fourthamendment.com\/?p=5567","title":{"rendered":"CA5: Police observing crime in defendant’s garage could enter"},"content":{"rendered":"

Maybe the first citation of King<\/a>: Fifth Circuit finds no police manufactured exigency where they arrested him in his garage after observing crime. [This case was submitted before King<\/a>.] United States v. Montanya<\/a>, 425 Fed. Appx. 392 (5th Cir. 2011) (unpublished):<\/p>\n

Montanya concedes that police had probable cause to arrest him and Figueroa but asserts that the seizure from his garage was improper because any exigency for the arrest was manufactured by the officers. We see no manufactured exigencies under the circumstances in this case because \u201cwe see no evidence that the officers either violated the Fourth Amendment or threatened to do so prior to the point when they entered the [garage].\u201d Kentucky v. King<\/a>, No. 09-1272, ___ S. Ct. ___, 2011 WL 1832821, slip. op. at 17 (U.S. May 16, 2011); see also United States v. Rico, 51 F.3d 495, 502 (5th Cir. 1995) (holding that we examine the motivation of the police and the reasonableness and propriety of the investigative tactics that created the exigency). Police had probable cause to investigate Figueroa standing in plain view in the driveway, a place that is not constitutionally protected and in which there is no reasonable expectation of privacy. See, e.g., United States v. Brown, 510 F.3d 57, 65 (1st Cir. 2007) (holding that when a driveway is exposed to public view it is not part of the home\u2019s curtilage protected by the Fourth Amendment). At that point, the officers knew that a substantial drug deal had likely just occurred and that the drugs had apparently been offloaded from a vehicle not registered to that location. When they saw Montanya throw an apparent weapon under the car they were justified in seizing him for officer safety and in conducting a protective sweep. See United States v. Jones, 239 F.3d 716, 721-22 (5th Cir. 2001) (holding that police could enter apartment when they viewed a gun through an open door after conducting a proper \u201cknock and talk\u201d); United States v. Maldonado, 472 F.3d 388, 394 (5th Cir. 2006) (holding that protective sweep may be reasonable to ensure officers\u2019 safety, particularly during drug arrests where the presence of weapons is not uncommon). We conclude that the officers\u2019 \u201cactions that led up to the decision to discontinue covert surveillance, approach the … residence, and seize [Montanya]\u201d were reasonable. See Rico, 51 F.3d at 502. They neither engaged nor threatened to engage in conduct that violated the Fourth Amendment, and Montanya\u2019s police-created exigency argument fails. See King, slip. op. at 8.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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