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Showing posts from August, 2010

Search Incident to Execution of Warrant Upheld

U.S. v. Allen, 2010 WL 3222107 (Aug 17, 2010) At approximately 8:00 p.m., police accompanied by a SWAT team executed a search warrant at a bar where Allen worked as a security guard. The warrant, issued in conjunction with a homicide investigation unrelated to Allen or the bar, authorized collection of security videotapes. The bar was in a high-crime area and was patronized by some with histories of violence, firearm possession, and drug activity. Roughly four months before the raid, a person had been shot at the bar, and a few weeks before the raid an individual was arrested for illegally possessing a firearm inside the bar.

Officers secured the premises inside and outside the bar. Five people-including Allen, who was on duty as a security guard-were standing directly in front of the bar. The SWAT team, wearing armor and with guns drawn, ordered them to lie face down on the sidewalk with their hands in front of them, and explained that they would be detained just long enough to ensur…

In first treatment of Gant, Third Circuit applies limited search-incident-to-arrest rule beyond vehicle searches

In its first treatment of Arizona v. Gant, 129 S. Ct. 1710 (2009), which overruled the Belton rule allowing police to search a suspect's car incident to his arrest even if the suspect no longer has access to the car at the time of the search, the Third Circuit has held that Gant applies to all searches incident to arrest, not just to car searches. The case is United States v. Shakir, No. 09-2665 (3d Cir. Aug. 10, 2010).

The search-incident-to-arrest exception to the warrant requirement permits police to search an arrestee's person and "grab area," to ensure officer safety and guard against evidence destruction. Fueled by Belton, many courts had expanded the exception to permit search of the arrest area even after the suspect no longer conceivably has access to that area (e.g., when he had already been transported from the scene)-- unmooring the exception from its rationale.

Gant put an end to that, but like Belton, was decided in the vehicle context. The Third Cicuit h…

Fractured Third Circuit panel clarifies government waiver rules and previews looming Fourth Amendment issue

In a rare, three-opinion panel decision, the Third Circuit has weighed in on -- but, for now, has not resolved -- an important issue concerning the Fourth Amendment exclusionary rule: when a suspect is unlawfully seized, but then breaks away and discards evidence while being chased by police, should the evidence be suppressed? The case is United States v. Dupree, No. 09-3391 (3d Cir. Aug. 6, 2010). The district court suppressed the evidence in question, a gun, and the government appealed. The Third Circuit affirmed the suppression order, with one judge concluding that the government had waived the suppression argument it made on appeal, and another judge concluding that the order should be affirmed on the merits.

A standard exclusionary rule "fruits" analysis would lead to suppression when a "forced abandonment" occurs after an unlawful seizure, since there is no meaningful causal attenuation between the unlawful seizure and the discovery of the discarded evidence. …