{"id":918,"date":"2007-06-25T13:24:56","date_gmt":"2007-04-13T14:25:56","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2007-04-13T14:25:56","slug":"en-US","status":"publish","type":"post","link":"https:\/\/fourthamendment.com\/?p=918","title":{"rendered":"Silence in the face of a protective sweep is consent by acquiescence"},"content":{"rendered":"

Silence in the face of a protective sweep is consent by acquiescence. United States v. Pena-Baez, 2007 U.S. Dist. LEXIS 26554 (D. Kan. April 9, 2007). (Comment:<\/em> Like a suspect would feel that he could object to cops wandering around in his house? The violation has already occurred by then.)<\/p>\n

Various factors involving a tractor trailer amounted to reasonable suspicion to extend the stop. United States v. Lopez, 2007 U.S. Dist. LEXIS 26170 (E.D. Pa. March 26, 2007):<\/p>\n

Once the truck was validly stopped, Gooding acted lawfully in requesting license, registration and other vehicle-related paperwork, and in questioning Santana and Garcia about details related to such paperwork. See, e.g., Givan<\/em>, 320 F.3d at 459; Rosborough<\/em>, 366 F.3d at 1148. Within a matter of minutes into the stop, Gooding’s quick inspection of the truck and the paperwork revealed the following: both drivers were awake, religious disclaimers in the cab, high DOT number, unusual log book entries (especially given the nature of the perishable cargo involved), load’s origination in Ontario, and that Santana had flown from Phoenix to Ontario to pick up the truck. These objective facts, viewed in light of Sgt. Gooding’s extensive experience, amounted to the requisite “reasonable and articulable suspicion” of criminal activity sufficient to justify him expanding the scope of temporary stop. See United States v. Johnson,<\/em> 285 F.3d 744, 749 (8th Cir. 2002) (finding reasonable suspicion for extended detention during routine safety stop based on incomplete log book entries and paperwork, driver’s confusion as to final destination, that driver flew to pick up truck, truck’s indirect route given that it carried produce, driver’s evasive and strange behavior, and unusual locks on the trailer). Upon “escalation” of the stop, Gooding reasonably broadened his investigation in calling for a drug dog and in contacting EPIC to access their database.<\/p>\n

Given the totality of the circumstances in this case, the Court concludes that the 20-minute delay in the canine’s arrival, during which time Gooding continued his reasonable investigation by contacting EPIC and making inquiries of Garcia, was not unreasonably lengthy as to render the detention of the tractor-trailer unconstitutional. See Frost<\/em>, 999 F.2d at 742 (80 minute delay between initial seizure and arrival of canine not unreasonable). This is especially the case where there is no indication that Gooding and Smart acted with anything less than the utmost diligence; indeed, Trooper Smart and Rita arrived at Gooding’s location within a minute or so after Smart concluded his traffic stop, approximately 20 minutes after Gooding initially requested canine assistance. <\/p><\/blockquote>\n

Fact question remainded for trial based on plaintiff’s version that excessive force was unjustified when it was used. Carey v. Maloney, 480 F. Supp. 2d 548 (D. Conn. 2007):<\/p>\n

The Court finds that there are genuine issues of material fact regarding the conduct of Officers Maloney and Fox and the amount of resistance Carey offered. A reasonable jury could find that Carey was subjected to more force than necessary to secure his arrest, particularly given Carey’s deposition testimony that Fox and Maloney failed to warn Carey before pushing him against the pick-up truck, that he did not resist arrest, and that he had only taken a couple of steps toward his father, as well as the short period of time before the pepper spray was used, and the number of times he was sprayed.<\/p><\/blockquote>\n

Officers had probable cause to arrest the plaintiff for public intox so his civil case fails. Nitsch v. City of El Paso, 482 F. Supp. 2d 820 (W.D. Tex. 2007).*<\/p>\n","protected":false},"excerpt":{"rendered":"

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