{"id":659,"date":"2007-06-17T06:30:39","date_gmt":"2006-12-26T09:27:48","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2006-12-26T09:27:48","slug":"en-US","status":"publish","type":"post","link":"https:\/\/fourthamendment.com\/?p=659","title":{"rendered":"Pre-Miranda question “where’s your gun” did not justify suppression under Quarles"},"content":{"rendered":"

Officers had an arrest warrant and expected to find the defendant armed. When they found him in a motel room, they had to tazer and tackle him to make the arrest. Before Mirandizing him and after handcuffing him, he was asked where he hid the gun. He told them. Then they cleaned a bruise on his head from the arrest, Mirandized him, and sought consent to search. Under Quarles<\/em>, his answer was not suppressed. The fact defendant was handcuffed did not alter the outcome. Moreover, the court found the evidence supported the district court’s conclusion that he consented after all that (and circuit authority supported it). United States v. Smith, 210 Fed. Appx. 533 (7th Cir. 2006)* (unpublished):<\/p>\n

Following Quarles, we have held that when arresting officers have reason to believe that a suspect has concealed a weapon near the place of arrest, they may ask about the weapon to protect themselves or the public “from the immediate danger that a weapon would pose” even after the suspect is handcuffed and searched. United States v. Edwards, <\/em>885 F.2d 377, 384 n.4 (7th Cir. 1989); see also United States v. Knox,<\/em> 950 F.2d 516, 519 (8th Cir. 1991) (police were not required to give Miranda<\/em> warnings before asking arrestee where his gun was; even though pat-down indicated arrestee did not have a gun, police had reason to believe it could be close by or in a public area).<\/p>\n

Here, the officers had reason to believe Smith had a concealed gun nearby. He was wanted on weapons charges and the tipster had told police that Smith was recently armed. The officers could tell that the gun was not on his body, so there was reason to believe Smith had hidden or disposed of it somewhere else close by. Even though Smith was handcuffed and his hotel room was secured, the gun could be elsewhere nearby and thus might pose a threat either to members of the public who could discover it, or even to the officers should Smith again resist arrest. Reasonably believing that Smith had a concealed gun but having not yet seen it, the officers properly invoked the public safety exception to ask Smith where it was.<\/p>\n

Smith’s second argument–that his waiver and consent to search were involuntary so that the gun itself should have been suppressed–is also meritless. He says that he “consented” only after being tackled and tasered by police, and hitting his head on the door frame. We initially note that Smith “signed a consent form, which weighs heavily toward finding that his consent was valid.” United States v. Taylor,<\/em> 31 F.3d 459, 463 (7th Cir. 1994). Moreover, the district court determined that under the totality of the circumstances, Smith’s waiver and consent were not coerced, a factual finding we review for clear error. See Schneckloth v. Bustamonte,<\/em> 412 U.S. 218, 227 (1973); Mendoza, <\/em>438 F.3d at 795. The record shows that the officers did not use weapons or any kind of force to obtain the waiver and consent (only the arrest), and that any physical injury Smith sustained during his arrest was insignificant. We have found that arrest-related injuries do not necessarily vitiate valid consent, see Watson v. DeTella,<\/em> 122 F.3d 450, 454 (7th Cir. 1997) (consent voluntary even though defendant had been kicked in the head by police at the time of his arrest), particularly when arresting officers inflict injuries solely to bring suspects into compliance with police orders and not as a form of interrogation. See id.<\/em> (suspect was kicked in the head during his arrest not to make him confess but because he refused to raise his hands). That is the case here, so the district court’s consent finding was not clearly erroneous.<\/p><\/blockquote>\n

Generalized flyover in rural Tenneessee led to officers spotting marijuana plants 50 yards behind defendant’s house with no enclosures. United States v. Ortkiese, 208 Fed. Appx. 436 (6th Cir. 2006)* (unpublished):<\/p>\n

Here, the police spotted several marijuana plants growing in Ortkiese’s backyard while conducting a routine helicopter flyover. The marijuana plants were not within the curtilage of Ortkiese’s home, as the officers spotted the contraband 50 yards behind the home, out in the open and without any enclosure. The Supreme Court, notably, has reaffirmed the open-fields doctrine in the precise context of the cultivation of marijuana plants some distance from a person’s residence. See Oliver,<\/em> 466 U.S. at 174, 179; cf. United States v. Dunn,<\/em> 480 U.S. 301 (1987) (defining the curtilage protected by the Fourth Amendment by its “proximity . . . to the home,” whether it is “within an enclosure surrounding the home,” how it is used by the owner and “the steps taken . . . to protect the area from observation by people passing by”).<\/p>\n

To the extent Ortkiese means to challenge the government’s search of his property by a helicopter, he offers no evidence to support his theory that the police were targeting him for investigation, as opposed to performing a generalized flyover, the latter of which the Court has approved as constitutionally permissible. See Florida v. Riley,<\/em> 488 U.S. 445, 450-51 (1989) (plurality); id.<\/em> at 454-55 (O’Connor, J., concurring in the judgment). Because the officers’ search for, and seizure of, the marijuana plants were valid in every respect, the district court correctly rejected his Fourth Amendment challenge.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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