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The "Legal Corner" contains interesting news and information concerning legal issues ranging from DUI to Simple Possession of Drugs, including reckless homicide, child endangerment, and possession of cocaine and/or controlled substances. The Steve Sumner Law Firm team also provides their take on this information.
On January 20, 2011 the Ohio Court of Appeals affirmed the trial courts granting of the defendant's motion to suppress a car search, and any illegal material found therein. The court held that movement in the back seat of a vehicle could not necessarily be confirmed as "furtive." The court held: "Without a firm statement from the testifying officer that a hand to hand exchange had occurred , the legal standard to justify the search and seizure has not been met. As this court has held before, if action of the men can be consistent with innocent behavior, we must resolve the search and seizure in favor of the defendant's fourth amendment rights." Accordingly, the appellate court upheld the lower court's suppression of any and all evidence found in this case.
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On Monday January 24, 2011 the 8th Circuit United States Court overturned the conviction and sentence of a man whose conviction was based on very questionable testimony from the police officers about a traffic stop. The three judge panel declared both lower court judges guilty of "clear error" and their decisions supporting the conviction.
The Nebraska State Highway Patrol set up a fake drug roadblock in Seward County, Nebraska in February 2008. The idea was to set up a sting at an exit ramp just before the checkpoint and pull over any vehicles trying to avoid the roadblock. The arresting trooper stated on video multiple times that he had stopped the defendant for "failing to signal properly." On two occasions in the lower court trial the trooper's story changed about why he pulled over the defendant.
The Court of Appeals held as follows: "We can find no evidence in the record that supports the trooper's statements. Defense counsel pressed the trooper on his inconsistent statements during cross-examination, and the trooper could offer no explanation for the inconsistencies of his testimony." Accordingly, the court suppressed a search of the vehicle which found 151 grams of methamphetamine. Because the traffic stop was unlawful, the defendant's conviction was overturned.
It does not appear that one motorist "flipping a bird" to another motorist justifies police stopping the vehicle in Arkansas. In Jones v State, 2011 ARK. App.61 (January 26, 2011), the Arkansas Supreme Court held that an off duty police officer seeing one person in a parking lot area giving the finger to another person did not form adequate legal reasonable suspicion for the officer to stop the person as a "possible road rage incident." Therefore, any and all evidence of criminal activity which resulted from the seizure and subsequent search of the individual's car was illegal and suppressed.
In State v Thomas, 2011 KAN Lexis 4 (January 1, 2011), an appellate court in Kansas suppressed and reversed a lower court conviction for "possession of drug paraphernalia" against Ms. Thomas. Specifically, the court held as follows: "We conclude that Officer Brown's (the original investigating officer) call for a backup officer, when combined with his other conduct, would convey to a reasonable person that he or she was not free to refuse to answer Officer Brown's questions or otherwise terminate their encounter. More specifically, both before and after making the call, Officer Brown repeatedly asked Ms. Thomas questions about her drug use and potential drug possession. After the call for backup, Ms. Thomas emptied her pockets for Officer Brown, apparently in an attempt to prove that her denials were true. Officer Brown then asked to feel inside her pockets, and Ms. Thomas threw her hands up into the air. After Officer Brown again told Ms. Thomas to "be honest with me", she confessed to possessing drug paraphernalia. In stark contrast to the first stage of their encounter, at no time during the second stage of this encounter did Officer Brown tell Ms. Thomas that she was free to leave. Accordingly, any and all evidence seized as a result of the second stage of the encounter should be suppressed."
Recently, the United States Circuit Court of Appeals-First Circuit-ruled that law enforcement may seize and search any occupied vehicle on the basis of citing "terrorism concerns." The Appellate Court found that the Massachusetts Bay Transportation Authority (MBTA) acted lawfully when they searched the van belonging to Edgar Ramos, while it was in the parking lot of the Sullivan Square Station in Charlestown, Massachusetts, on May 28, 2004. The basic facts are as follows: On May 28, 2004 at 6:50 a.m. MBTA guard Tricia Pitts stated that she could see two individuals in a white passenger van in the back lot which contained around 200 other cars. Pitts had previously attended a one day seminar that suggested that vehicles with occupants inside were potential "terrorist threats." She also stated that she later saw several men exit the van, one of whom was writing something on a piece of paper. After the men stretched their legs, they returned to the van. Pitts then drove past the van and noted that it appeared to have a paper license plate and tinted windows. Pitts also testified that she believed the dark skinned males to be of Middle Eastern descent. Pitts then called in the MBTA police officers who approached the van in a "tactical form." Ramos, along with other occupants of the van, were ordered to get out. He produced a Texas driver's license, but the other men had Brazilian passports with entry stamps for Mexico, but not for the United States. Immigration officials later determined that they were in the country illegally. Ramos appealed his conviction, asking the three judge panel to rule on whether the initial search and seizure of his vehicle was lawful. Relying upon the 2004 public transit bombings in Madrid, Spain, the Court found that the search and seizure did not violate the fourth amendment of the United States Constitution.
The basis for the Court's ruling, in upholding the earlier district court's finding that the search and seizure was constitutional, was Pitts' "terrorism training." The court went on to specifically state, "We note as a preliminary matter that the nature of the intrusion in opening the front passenger door was minimal. Within this broad context, it was appropriate for the police to take into account the location of the suspicious conduct and the degree of the potential danger being investigated...there is nothing on the particular facts of this case that would forbid the officer's consideration of the information that at least two of the van's occupants appeared to be Middle Eastern…this is not a case in which the only basis for suspicion was Ramos' appearance. Under the totality of the circumstances present, the officers had reasonable suspicion that criminal activity was afoot."
Steve Sumner Law FirmAttorney Steve W. Sumner1088 N. Church StreetGreenville, SC 29601864-235-3834Emergency: 864-979-0772
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