{"id":6717,"date":"2012-06-23T11:01:58","date_gmt":"2012-02-23T07:34:36","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2012-02-23T07:34:36","slug":"en-US","status":"publish","type":"post","link":"https:\/\/fourthamendment.com\/?p=6717","title":{"rendered":"CA2: Defendant moved to suppress and government failed to do much of anything; suppression affirmed"},"content":{"rendered":"

The district court granted defendant\u2019s motion to suppress for failure to have a reasonable basis for a protective sweep. In the district court, the government failed to develop the record. [Because they couldn\u2019t, because they didn\u2019t think they had to, why?] United States v. Fann<\/a>, 462 Fed. Appx. 128 (2d Cir. 2012):<\/p>\n

In part because the Government did not submit any affidavits or other evidence before the district court to develop the record, the Government fails to identify specific, articulable facts that demonstrate that the officers who conducted the search of the residence reasonably believed that an individual was present at the time of Fann’s arrest and that such individual posed a danger to them. Because the officers lacked this reasonable belief, their warrantless search of the residence violated Fann’s Fourth Amendment rights. The evidence obtained through the search was properly suppressed.<\/p><\/blockquote>\n

Compare this Texas case<\/a> from four days ago where the state prosecutor did the same thing. What were they thinking? We’re from the government and we can lose?<\/p>\n

They indicted. Did they have no confidence in the case? Roll over and play dead if the defendant happens to file a motion to suppress? What’s going on here? If the search was that bad they shouldn’t have indicted in the first place. Or were they so obtuse they didn’t think of that before going to the grand jury? <\/p>\n

Remember Calandra<\/a> from 1974 holding that the defendant can’t litigate the quality of the search before the grand jury because it unnecessarily screws with the grand jury’s function and we have to trust the AUSA to do the right thing? In the run of the mill case (98% of them) with close questions of fact and law, I get that. This case, however, is real proof that Calandra might have been wrong when the government is just incapable of recognizing that the officers did it really wrong and the search will fail in court. Nevertheless, there is at least some remedy after indictment. Maybe there is an ethical complaint here for the prosecutor proceeding without justification. See Rule 3.8(a)<\/a> which is not clear on this. More to the point is Rule 4.4(a)<\/a> on burdens on others.<\/p>\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-6717","post","type-post","status-publish","format-standard","hentry"],"_links":{"self":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/6717","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=6717"}],"version-history":[{"count":0,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/6717\/revisions"}],"wp:attachment":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=6717"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=6717"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=6717"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}