Robertson:
Robertson encounters a fundamental obstacle: standing. A defendant must show standing even if the government has not pressed the issue in the district court. United States v. Nadler,698 F.2d 995, 998 (9th Cir. 1983). Fourth Amendment rights are personal rights which may not be vicariously asserted. Rakas v. Illinois,439 U.S. 128, 133-34, 99 S.Ct. 421, 425-26, 58 L.Ed.2d 387 (1978). Even when officers make a blatantly pretextual arrest of one defendant that creates exigent circumstances justifying search of a second defendant’s house, the second defendant may not challenge the legality of the arrest. United States v. Chase,692 F.2d 69, 70 (9th Cir. 1982). Here it is undisputed that the arrest warrant named only Johnson. Had he survived, he could have raised a challenge to the delay in execution of the warrant. Standing in for the dead man, Robertson may not invoke any rights Johnson might have had.
Steeprow – Detention and Search:
Whether an arrest has occurred depends on all the surrounding circumstances, including the extent to which liberty of movement is curtailed and the type of force or authority employed. See United States v. Patterson,648 F.2d 625, 632 (9th Cir. 1981) (citing United States v. Harrington,636 F.2d 1182, 1186 (9th Cir. 1981) (citations omitted)). We often confront the issue of when a legitimate ” Terry stop,” for which only reasonable suspicion of criminal activity is required, escalates into an arrest for which probable cause is required. The differing standards for each reflect the differing degrees of intrusion characteristic to each. A Terry stop involves no more than a brief stop, interrogation and, under the proper circumstances, a brief check for weapons. Beyond such a brief and narrowly circumscribed intrusion, an arrest occurs, for which probable cause is required. See Kraus v. City of Pierce,793 F.2d 1105, 1108-09 (9th Cir. 1986), cert. denied, ___ U.S. ___, 107 S.Ct. 1571, 94 L.Ed.2d 763 (1987). The ultimate question is whether, in view of all the circumstances, a reasonable person would believe himself to be under arrest. Id.
We conclude that the officers’ detention of Steeprow at gunpoint was an arrest which required probable cause. Steeprow was confronted by seven to ten police officers, one of whom aimed his gun at her nose, told her to freeze, and detained her for at least five and perhaps fifteen minutes. The restriction of her liberty of movement was complete upon this encirclement by officers who gave her orders at gunpoint.
We hold that probable cause for her arrest was absent. For all that was then known to the officers, Steeprow was an innocent visitor. Lacking from both the arrest warrant for Johnson and the search warrant for the premises was the slightest indication that Steeprow was involved in criminal activity. Her mere presence on the premises, without more, cannot support an arrest of her under these circumstances.
Search:
The warrant in this case authorized a search of
the premises known as 855 68th Street, Springfield Oregon and curtilage and appurtences [sic] and vehicles.
The government and the dissent would have us hold that the particularity requirement of the Fourth Amendment was satisfied either by the reference to “appurtences” or to “curtilage.” Steeprow contends that the warrant cannot be read to describe her backpack, and thus that the search of it was a warrantless search in violation of the Fourth Amendment. We reject the government’s and the dissent’s expansive reading of the warrant and agree with Steeprow. The search of Steeprow’s backpack was an unreasonable search which violated the Fourth Amendme
Read full case here: U.S. v. Robertson, 833 F.2d 777 (9th Cir. 1987), https://casetext.com/case/us-v-robertson-96
Anton Vialtsin, Esq.
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