Archive for the ‘Search incident to arrest’ Category

Physical profiling of defendant permitted as long as not the sole reason for police encounter.

Friday, January 29th, 2010

U.S. v. Quintana, 585 F.3d 1407 (11th Cir. 2009)

This defendant entered a conditional guilty plea and was convicted of illegally entering the U.S. after being previously removed following illegal entry. On appeal, the defendant argued that his right to equal protection was violated because he was only approached by police because they believed him to be of Middle Eastern descent or Muslim. The district court denied defendant’s motion to dismiss the indictment finding that the defendant’s ethnicity or religion was not the only basis for initiating an encounter. The appellate court, reviewing a motion to dismiss an indictment for abuse of discretion, reviewed the finding of fact for clear error. They determined that the totality of the circumstances known to the arresting officers were sufficient to justify a consensual encounter to decide whether further investigation might reveal criminal activity and therefore affirmed the district court’s finding that the defendant’s race or ethnicity was not the sole reason for the police encounter.

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Posted in Probable Cause, Search incident to arrest | No Comments »

Walkaway conviction not a crime of violence under ACCA.

Tuesday, January 12th, 2010

U.S. v. Lee, 586 F.3d 859 (11th Cir. 2009)

Defendant was convicted of being a felon in possession of a firearm and sentenced to 180 months in prison. On appeal, he argued that the district court erroneously denied his motion to suppress the gun found in his co-defendant’s vehicle and abused its discretion by allowing improper jury instructions. The defendant also challenged his sentence arguing that his prior NJ convictions did not meet the standard under the ACCA to enhance his sentence.

The appellate court held that because the defendant, a passenger, had no legitimate expectation of privacy in the interior of the vehicle, he neither had a privacy expectation of the glove box, and lacked standing to challenge the search.

The appellate court also found that the district court’s jury instructions constituted an accurate statement of the law and therefore did not warrant reversal.

Lastly, the appellate court examined the defendant’s NJ prior walkaway conviction to determine it if fit within the ACCA’s enumerated crimes. It found that “a non-violent walkaway escape from unsecured custody is not sufficiently similar in kind or degree of risk posed to the ACCA’s enumerated crimes to bring it within its residual provision.” Therefore, the appellate court vacated defendant’s sentence and remanded back to the district court for resentencing.

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Posted in Fourth Amendment, Jury Instructions, Motion to Suppress Evidence, Probable Cause, Search and Seizure, Search incident to arrest, sentence enhancement | No Comments »

Reasonable suspicion of drug transaction led to probable cause to arrest defendant for possession of methamphetamine.

Monday, July 13th, 2009

United States v. Lopez-Garcia, 565 F.3d 1306 (11th Cir. 2009)

The defendant was convicted of being unlawfully found in the United States after having been previously removed and deported.

The defendant was pulled over for violating a traffic law in an area well-known for narcotics activity, after an officer observed his car stopped in the roadway and someone leaning into the passenger window. When asked for his driver’s license, the defendant showed the officer a Mexican license and said he had resided in the U.S. for several years. The defendant consented to the search of his car and the officer found a bulb-shaped glass tube containing a white residue believed to be methamphetamine.

He was arrested for possession and booked, and an ICE agent assigned to the jail performed a preliminary computer search where he learned that the defendant was born outside of the U.S. The ICE agent told the defendant that his purpose was to determine his immigration status. After this meeting, the agent received the Immigration Action Query that was run as part of the jail’s ordinary booking procedure, which indicated that the defendant had been deported, removed, or excluded in 2003 and no record of a legal entry was found.

At the second meeting, the agent read the defendant his Miranda warnings in Spanish from a standardized form which the defendant signed. The agent questioned the defendant in Spanish for about ten minutes and gave the defendant a copy of all the questions and answers, which he again willingly signed.

The defendant was indicted on federal charges of having been unlawfully found in the U.S. after having been previously removed and deported. The defendant moved to suppress the statements made to the ICE agent regarding his immigration status and the documentary evidence obtained. A magistrate judge held an evidentiary hearing and issued and R&R concluding that the arresting officer violated the Fourth Amendment when he stopped the defendant’s vehicle because he did not have either probable cause or reasonable suspicion. The judge then recommended that the evidence obtained at the scene of the arrest be suppressed. However, the R&R concluded that the defendants subsequent statements and documentary evidence should not be suppressed.

The officer had reasonable suspicion that defendant was engaged in hand-to-hand drug transaction and had probable cause to arrest defendant for possession of methamphetamine.

The District court held that officer’s suspicion was supported by several articulable facts including the location of the vehicle, physically, and in a high-crime area, an unknown individual leaning into the window, and the defendant leaving the scene once he noticed the officer. Furthermore, based on the substance and paraphernalia recovered from the consensual search, the officer reasonable believed that the defendant was in possession of methamphetamine.

The District court correctly concluded that the statements made to ICE agent were too removed from arrest to have suffered any taint.

Since the defendant’s seizure and arrest were not found to be unconstitutional , the fruit of the poisonous tree argument fails. In the alternative, even if the statements were tainted, they were too attenuated from the arrest to be regarded as fruit of the poisonous tree: the statements were made the day after the arrest; the arrest and questioning were done by two different individuals with two different objectives-immigration status and suspected drug activity; and neither the stop of the vehicle nor the immigration inquiry were made with an ulterior motive to prosecute the defendant for being illegally in the U.S.

The District court did not err in imposing the Guideline’s sixteen offense-level enhancement.

The defendant, prior to his removal, had a conviction for a felony firearms offense in Georgia, which, he argues, does not fall within the Guidelines 2L1.2 definition. The Court of Appeals found that the prior conviction met the Guidelines definition; and based on the facts set forth in the PSI, the District court correctly concluded that the defendant’s conduct from the previous conviction would have constituted a violation of Section 924(c) and therefore, the court was correct to impose the sixteen offense-level enhancement.

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Posted in Arrest Warrant, Fourth Amendment, Motion to Suppress Evidence, Pre-Sentence Investigation Report, Probable Cause, Procedure, Search and Seizure, Search incident to arrest, Sentencing Guidelines, sentence enhancement, upward variance | No Comments »

Search that uncovered a gun between mattress and box spring upheld as reasonable because it was within the grab area of two individuals who were present in the apartment where the defendant was arrested pursuant to an arrest warrant.

Wednesday, April 29th, 2009

United States v. Bennett, 555 F.3d 962 (January 21, 2009)

The defendant was convicted of possession of a firearm by a convicted felon. During the course of executing an arrest warrant for Bennet at his apartment, the police conducted a protective sweep of one of the bedrooms in the apartment, occupied by Bennet’s brother and a friend, where they found a rifle between a mattress and box spring. The defendant moved to suppress arguing that the search “improperly expanded the scope of their protective sweep outside Bennett’s grab area.” The Eleventh Circuit upheld the search finding that the agent had a reasonable belief that the brother and friend could be dangerous and both had been moved to the bed by the agent. It was reasonable for the agent to lift the mattress as a safety precaution since the officer was not familiar with what objects may have been in the room, as the boys may have been, and the mattress was properly within the limited grab area of both young men.

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Posted in Arrest Warrant, Fourth Amendment, Motion to Suppress Evidence, Procedure, Search and Seizure, Search incident to arrest | No Comments »

Speedy trial delay warranted a dismissal without prejudice and not with prejudice.

Friday, April 24th, 2009

U.S. v. KNIGHT, 562 F.3d 1314 (11th Cir. March 31, 2009)

After the car Mr. Knight was riding in as a passenger was pulled over, a police officer saw him place a gun on the floor boards. He was arrested on state charges. While still state custody he was indicted by a federal grand jury on September 29, 2005, for possession of the firearm by a convicted felon. A federal detainer was lodged against him to hold him in the event he made bond. He was visited by ATF officers in the county jail who advised him of the pending investigation. Knight made some incriminating statements and did not ask for an attorney. He was transferred to federal custody where he pled not guilty. The district court granted a speedy trial claim but dismissed without prejudice. As to the appeal from the district court’s order dismissing “without prejudice” the Court applied the factors and found the district court did not abuse its discretions.

The seizure of evidence was found reasonable based on initial stop of the driver which led to the resulting seizure from the defendant.

The Court upheld the denial of the motion to suppress evidence seized in the stop. It found the initial stop of the car was valid because the driver was seen without a seat belt on. The officer had probable cause to stop the car, and the officer was entitled to ask the driver to step out the car. He had reasonable suspicion to pat down the driver and the officer smelled marijuana and alcohol.

The denial of the motion to suppress statements.

The Court found that the prior invocation of rights in the state case did not apply to the federal case. Statements made to the ATF were admissible.
The district court committed clear error for failing to reduce Knight’s sentence for time spent in state custody for obstruction of justice.

Where a defendant has a prior offense that is relevant to the instant offense and resulted in an increase in the offense level of the instant offense, the sentencing guidelines provide that the sentence include a credit for a period served in state custody for the obstruction case. The government conceded the error because the conduct that was used to enhance his federal sentence was related to the state conviction and the BOP would not give credit for that time.

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Posted in Fourth Amendment, Motion to Suppress Evidence, Probable Cause, Search Warrant, Search and Seizure, Search incident to arrest, Sentencing Guidelines, Uncategorized, sentence enhancement | No Comments »