{"id":799,"date":"2007-06-17T07:19:09","date_gmt":"2007-02-22T06:47:26","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2007-02-22T06:47:26","slug":"en-US","status":"publish","type":"post","link":"https:\/\/fourthamendment.com\/?p=799","title":{"rendered":"Search incident justified of man arrested approaching a vehicle who officers never saw leaving the vehicle"},"content":{"rendered":"

Park Rangers came upon a parked pickup truck with an expired tag. While looking in the truck for firearms, a man appeared from the woods and said that the truck was his, and he offered an explanation that the license was expired because he just bought the truck and had not had time to license it. Another man appeared, and the officers separated them and asked for IDs and ran an NCIC check. The second man had a PV warrant for negligent homicide out of Georgia. As he was being handcuffed, he was asked about whether he had a gun, and he said that he did in a backpack in the truck. The question about the gun and subsequent search was justified under Quarles<\/em> because the officers could not know who else was in the woods. Alternatively, it was justified as a search incident under Belton<\/em> and Thornton<\/em>. He had been out of the vehicle only five minutes. United States v. Everman, 2007 U.S. Dist. LEXIS 11503 (W.D. Ark. February 16, 2007).<\/p>\n

While a protective sweep of a building may be permissible in limited situations where the defendant was arrested outside, this was not one of them. [To do so on these facts would stretch the facts.] Yorzinski v. Alves, 477 F. Supp. 2d 461 (D. Conn. 2007). Fn. 2 cites cases supporting such a protective sweep but found them inapplicable:<\/p>\n

n2 The cases cited by defendants are distinguishable on their facts. See, e.g., United States v. Martins<\/em>, 413 F.3d 139, 150-51 (1st Cir. 2005)(reasonable suspicion for protective sweep where shootings that officers were investigating took place within 100 yards of apartment complex, apartment was tied to shootings because one of the victims had retreated there, the police knew from experience that victims in gang-area shootings often were gang members themselves and tended to congregate with other gang members, and the individual who first spoke from behind the closed door was evasive and a different person responded the second time the officer knocked on the door); United States v. Richards<\/em>, 937 F.2d 1287, 1291 (7th Cir. 1991)(reasonable suspicion for protective sweep where “officers knew that the day prior, [defendant] had been seen with Moore, a suspect in the murder investigation. When [defendant] met them at the door, the officers did not know whether Moore was inside the apartment. Next, [defendant] opened the door with a gun [which] gave the officers a specific and articulable fact regarding [defendant’s] apartment: that it harbored at least one and possibly more threatening gun owners, such as murder suspect Moore,” the officers also saw cocaine in the living room and defendant “twice failed to answer [the officer’s] question about whether anyone else was in the house”); United States v. El-Gheur<\/em>, No. 91cr328 (LBS), 1991 U.S. Dist. LEXIS 13356, 1991 WL 197559, at *4 (S.D.N.Y. Sept. 24, 1991) (reasonable suspicion for sweep where “after arresting two individuals in Manhattan and seizing about 500 grams of heroin, the agents were told by one of the individuals that the supplier was at the apartment in Brooklyn waiting for the money and holding additional heroin [and] [w]hile the agents were standing outside the defendant’s apartment, the door opened and the defendant started to emerge [and] after the agents identified themselves as police officers, the defendant appeared ‘shocked’ and ‘startled’ and attempted to retreat back into the apartment. After the officers entered the apartment, they found a second individual with the defendant”).<\/p><\/blockquote>\n

Defendant was validly stopped for a seat belt violation and he had been under surveillance all day for drug trafficking. While unrestrained, but in a police car, he was asked for consent to search his house which he gave, and the court finds it valid. United States v. Valdez, 2007 U.S. Dist. LEXIS 11556 (S.D. Tex. February 20, 2007).*<\/p>\n

Defendant who bought a car by identity theft or use of a false identity had no reasonable expectation of standing in the vehicle when it was seized. United States v. Daprano, 2006 U.S. Dist. LEXIS 95371 (D. N.M. December 13, 2006):<\/p>\n

In United States v. Betancur<\/em>, the Tenth Circuit held that a person who fails to come forward with evidence establishing that he or she was in lawful possession of a vehicle does not have standing to contest a search of that vehicle. See<\/em> 24 F.3d at 77. Other circuit courts, such as the United States Court of Appeals for the Second Circuit, have ruled, more specifically, that a defendant who knowingly possesses a stolen vehicle has no legitimate expectation of privacy in the vehicle and, therefore, cannot establish standing to contest a search of the vehicle. United States v. Tropiano<\/em>, 50 F.3d at 161-62. Basing its decision in United States v. Caymen<\/em> on unlawful vehicle possession cases like Betancur and Tropiano, the Ninth Circuit, finding no ground on which to distinguish property obtained by fraud from property obtained by theft, found that a defendant who had fraudulently obtained a laptop computer had no Fourth Amendment standing to contest a search of that computer’s files. See United States v. Caymen<\/em>, 404 F.3d at 1200-01.<\/p>\n

Considering that line of cases, the Court finds that Daprano has no standing to contest the searches of the Jetta. Like the Ninth Circuit, the Court does not believe that there is a basis for distinguishing between fraudulently obtained property and stolen property. It is also clear to the Court that Daprano knowingly obtained the Jetta via fraudulent means. As such, Daprano has no legitimate expectation of privacy in the Jetta and, therefore, has no standing to contest the searches of it. Accordingly, to the extent that Daprano is requesting that the Court suppress evidence obtained from either the inventory search or the August 23 search, the Court will deny such requests.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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