The police created their claimed exigent circumstances, and they could not rely on them. DeMayo v. Nugent, 475 F. Supp. 2d 110 (D. Mass. 2007):<\/p>\n
Furthermore, even assuming arguendo that exigent circumstances were present, they were foreseeable and deliberately created by the government. When the government fully anticipates a search and seizure, it may not, absent countervailing factors, rely on exigent circumstances to avoid the warrant requirement. Niro v. United States,<\/em> 388 F.2d 535, 539 (1st Cir. 1968). In addition, the government may not deliberately create the exigent circumstances on which it then relies. Samboy,<\/em> 433 F.3d at 160; United States v. Cresta<\/em>, 825 F.2d 538, 553 (1st Cir. 1987). Unforeseeability, however, “has never been recognized as an element of the exigent circumstances exception.” Cresta<\/em>, 825 F.2d at 553. Additionally, an “exigency may arise at any time, and the fact that the police might have obtained a warrant earlier does not negate the possibility of a current situation’s necessitating prompt police action.” Cardwell v. Lewis<\/em>, 417 U.S. 583, 595-96, 94 S. Ct. 2464, 41 L. Ed. 2d 325 (1974).<\/p>\n
In this case, no exigent circumstances “arose” during the initiated controlled delivery. The protective sweep occurred in accordance with a “pre-arranged signal” almost immediately after the first undercover agent made contact with DeMayo’s father. DEA Report at 3. The exigent circumstances relied upon for justification were thus anticipated, expected, and foreseeable. Finally, the government deliberately created the exigency. See Cresta<\/em>, 825 F.2d at 553. The First Circuit has “refused to find exigent circumstances where the ‘circumstances [were] created by government officials who unreasonably and deliberately delay[ed] or avoid[ed] obtaining the warrant.'” Samboy<\/em>, 433 F.3d at 160 (citing United States v. Rengifo<\/em>, 858 F.2d 800, 804 (1st Cir. 1988)). A necessary element in such a determination is whether the government had control over the time of the delivery. Cresta, 825 F.2d at 553. This element is clearly found on the record evidence and is supported by the arrangement for delivery while posing as UPS employees. See DEA Report at 2.<\/p>\n
Additionally, the police must have had time to seek and secure a search or an arrest warrant. See Samboy<\/em>, 433 F.3d at 161. The First Circuit has held the circumstances not exigent where the police had three hours to secure a warrant. See United States v. Beltran<\/em>, 917 F.2d 641, 642 (1st Cir. 1990). Here, the drug dog alert to the package occurred at 9:15 AM and the controlled delivery occurred at approximately 11:25 AM. DEA Report at 1-2. This time period is well within the range recognized by the First Circuit as sufficient to secure a warrant. The sufficiency of the two hour time period is further supported by Nugent’s appearance before a clerk magistrate that same day at 2:25 PM to secure a search warrant for the suspect package. DEA Report at 5.<\/p><\/blockquote>\n
Arrest warrant does not become stale the same way as a search warrant. Here, defendant’s paying the debt on which the warrant was issued likely, even though there was an intervening bankruptcy, was a waiver of the issue. Pierre v. Warrick, 2007 U.S. Dist. LEXIS 11838 (M.D. Pa. February 20, 2007).<\/p>\n
Defendant showed a failure of performance of defense counsel to enable him to withdraw his plea of guilty because of defense counsel’s failure to appreciate the viability of a search and seizure claim. United States v. Singleton, 2007 U.S. Dist. LEXIS 12042 (N.D. Ind. February 20, 2007).*<\/p>\n
District court was justified in basing its credibility determination on impeaching defendant’s witness at suppression hearing with grand jury testimony. United States v. Evans, 216 Fed. Appx. 592 (7th Cir. 2007)* (unpublished).<\/p>\n
Defendant did not have standing to challenge the search of an international package at Chicago, the port of entry, and a search warrant was based on Customs finding a silencer in the package addressed to a known felon. The search warrant based on that finding for defendants’ home was with probable cause. United States v. Robinson, 2007 U.S. Dist. LEXIS 12072 (M.D. Ala. February 21, 2007).*<\/p>\n
Plaintiff was arrested with probable cause and subjected to video arraignment without 48 hours, so he fails to show a violation of constitutional rights. Bresette v. Krewson, 2007 U.S. Dist. LEXIS 11792 (W.D. Wis. February 20, 2007).*<\/p>\n
Claimant’s detention was with justification and was not unreasonably extended because reasonable suspicion had developed, even in a short time. United States v. $433,980 in United States Currency, 473 F. Supp. 2d 672 (E.D. N.C. 2006)*:<\/p>\n
First, any detention incident to that investigation was of limited duration. The encounter between Rodriguez and law enforcement personnel, from the moment he was pulled over until the currency’s discovery, lasted approximately forty minutes. Under these circumstances, even if Rodriguez’s detention occupied that entire time interval, it might not suggest a Terry<\/em> Stop of unreasonable scope. See United States v. McFarley,<\/em> 991 F.2d 1188, 1194 (4th Cir. 1993)(holding that, where officers had reasonable suspicion of a drug offense, seizing defendant’s luggage for 38 minutes under Terry did not mature into an unlawful arrest). However, the alleged detention here only commenced upon DiGiovanni’s issuance of the courtesy warning to Rodriguez, at 8:07. Even assuming the detention extended until after the currency’s discovery, it would have lasted at most 27 minutes. In light of DiGiovanni’s suspicion that a drug crime could be taking place, the Court does not find this to be a per se unreasonable duration. Second, DiGiovanni acted with adequate diligence in exploring his belief that Rodriguez and Escobar might be involved in a drug offense. DiGiovanni asked Rodriguez’s permission to question him further, and to search his vehicle; the drug sniff took only a few moments, and involved only two revolutions around the car’s exterior. The record thus reveals that both troopers worked expeditiously, using methods designed to limit intrusion upon Rodriguez’s Fourth Amendment interests. Third, the stop was not unnecessarily prolonged. Again, after he gave Rodriguez the courtesy warning, DiGiovanni turned immediately to investigating a possible drug crime; the record contains no indication that DiGiovanni and Jones required Rodriguez to wait unnecessarily. Finally, the governmental interest involved in this case — detection and preservation of evidence related to a possible drug crime — is substantial, and justifies the momentary restraint placed upon Rodriguez’s liberty. Place,<\/em> 462 U.S. at 703. Because Rodriguez’s alleged detention was supported by reasonable suspicion and conducted reasonably under the circumstances, the Court will not suppress the $433,980 or the dog sniff on Fourth Amendment grounds.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"
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