Snippets — Search & Seizure

Some snippets from cases released to LEXIS.

Plain view.

Under the plain view doctrine, evidence may be seized without a warrant if the following three conditions are met: "(1) 'the officer did not violate the Fourth Amendment in arriving at the place from which the evidence could be plainly viewed,' (2) the object's incriminating character is immediately apparent, and (3) the officer has 'a lawful right of access to the object itself.'" United States v. Hughes, 940 F.2d 1125, 1126-27 (8th Cir. 1991) (quoting Horton v. California, 496 U.S. 128, 136-37, 110 S. Ct. 2301, 110 L. Ed. 2d 112 (1990)).

United States v. Armstrong, No. 08-1974, 2009 U.S. App. LEXIS 2495, at *8–9 (8th Cir. Feb. 10, 2009).

  Just as quick "refresher" on "plain view."  At CLE today we also discussed "plain touch" and "plain smell."

Traffic stop and subsequent searches and seizures.

Once an officer has completed a traffic stop, he must allow the driver to continue on his way without further questioning so long as the driver has provided a valid license and proof of his right to operate the vehicle. Zabalza, 346 F.3d at 1259.  "However, this general rule is subject to a significant exception permitting an officer to engage in further questioning unrelated to the initial stop if he has probable cause, the consent of the suspect, or, at a minimum, a reasonable suspicion of criminal activity." Ozbirn, 189 F.3d at 1199.

United States v. Pulido-Vasquez, No._________, 2009 U.S. App. LEXIS 2576, at *8–9 (10th Cir. Feb. 10, 2009).

"When evaluating the reasonableness of the initial stop, '[o]ur sole inquiry is whether this particular officer had reasonable suspicion that this particular motorist violated any one of the multitude of applicable traffic and equipment regulations of the jurisdiction.'" Id. (quoting United States v. Botero-Ospina, 71 F.3d 783, 787 (10th Cir. 1995) (en banc)) (alteration in original; internal quotation marks omitted).

United States v. Pulido-Vasquez, No._________, 2009 U.S. App. LEXIS 2576, at *6 (10th Cir. Feb. 10, 2009).

Terry Stop.

A police officer may stop and briefly question a person if the officer has a reasonable, articulable suspicion of criminal activity. See Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). When a person commits a crime in the presence of the officer, that conduct gives the officer probable cause–a higher standard than reasonable, articulable suspicion–to seize the person. See e.g., United States v. Lewis, 183 F.3d 791, 794 (8th Cir. 1999) (describing the rule as "well-established"); United States v. Beardslee, 609 F.2d 914, 917-18 (8th Cir. 1979) (noting that an officer had probable cause to arrest after the defendant pointed a firearm at another officer).

United States v. Banks, No. 08-2511, 2009 U.S. App. LEXIS 2491, at *5–6 (8th Cir. Feb. 2, 2009).

An officer may frisk a suspect for the protection of himself or others nearby to discover weapons if "he has a reasonable, articulable suspicion that the [suspect] may be armed and presently dangerous." United States v. Roggeman, 279 F.3d 573, 577 (8th Cir. 2002) (citing Terry, 392 U.S. at 30).  "Courts are required to apply an objective test to resolve the question whether reasonable, articulable suspicion justified a protective search." Id. Under this objective test the "officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.  Terry, 392 U.S. at 27.

United States v. Banks, No. 08-2511, 2009 U.S. App. LEXIS 2491, at *9–10 (8th Cir. Feb. 2, 2009).

Reading cases is a useful refresher and reminder to be thinking about issues.

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