Judge orally approves the search of the home, but what does the 4th Amendment say about warrants?

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San Diego Criminal Defense Lawyer

POLICE SEARCH HOME. The Fourth Amendment specifically requires a warrant to include a description of the “place to be searched.” The police officers here—at first—complied with that requirement, obtaining a warrant that listed a motel room suspected of being a hub for drug trafficking. The officers then decided to search the suspect’s home as well, and asked the judge over the phone to expand the scope of the warrant to include the home. The judge agreed, but the officers did not physically amend the warrant.

We agree with the district court that the officers violated the Fourth Amendment because the warrant was facially defective. While a judge had orally approved the search of the home, the text of the Fourth Amendment still requires the warrant to specify the place to be searched.

Full case here: POLICE SEARCH HOME. Manriquez v. Ensley, — F.4th —- (2022), https://cdn.ca9.uscourts.gov/datastore/opinions/2022/08/30/20-16917.pdf

Anton Vialtsin, Esq.
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Reasonable Suspicion can’t be a broad profile casting suspicion on entire categories of people

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San Diego Criminal Defense LawyerThe Fourth Amendment’s prohibition of unreasonable searches and seizures extends to the brief investigatory stop of a vehicle. United States v. Brignoni–Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 2578–79, 45 L.Ed.2d 607 (1975). An officer may not detain *246 a motorist without a showing of “reasonable suspicion.” Rodriguez, 976 F.2d at 594. This “objective basis, or ‘reasonable suspicion,’ must consist of ‘specific, articulable facts which, together with objective and reasonable inferences, form the basis for suspecting that the particular person detained is engaged in criminal activity.’ ” Id. (citations omitted). A “gloss on this rule prohibits reasonable suspicion from being based on broad profiles which cast suspicion on entire categories of people without any individualized suspicion of the particular person to be stopped.” United States v. Rodriguez–Sanchez, 23 F.3d 1488, 1492 (9th Cir.1994). United States v. Garcia-Camacho, 53 F.3d 244, 245–46 (9th Cir. 1995)

This court recently stated in Gonzalez–Rivera v. INS, 22 F.3d 1441, 1446 (9th Cir.1994), that “[u]nder Ninth Circuit law, a driver’s failure to look at the Border Patrol cannot weigh in the balance of whether there existed reasonable suspicion for a stop.” The court stated:

A driver’s failure to look at the border patrol car [cannot be used to justify the agent’s suspicion] since the opposite reaction, a driver’s repeated glancing at a Border Patrol car, can also be used to justify the agent’s suspicion. To give weight to this type of justification “would put the officers in a classic ‘heads I win, tails you lose’ position [and] the driver, of course, can only lose.” Id. at 1447 (citation omitted). United States v. Garcia-Camacho, 53 F.3d 244, 247 (9th Cir. 1995)

Full case here: United States v. Garcia-Camacho, 53 F.3d 244, 247 (9th Cir. 1995), https://cite.case.law/f3d/53/244/

Anton Vialtsin, Esq.
LAWSTACHE™ LAW FIRM | Criminal Defense and Business Law
https://lawstache.com
(619) 357-6677

Do you want to buy our Lawstache merchandise? Maybe a t-shirt?
https://lawstache.com/merch/

Want to mail me something (usually mustache related)? Send it to 185 West F Street, Suite 100-D, San Diego, CA 92101

Want to learn about our recent victories?
https://lawstache.com/results-notable-cases/

Are you are a Russian speaker? Вы говорите по-русски?
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Based in San Diego, CA
✅Licensed: California, Nevada, and Federal Courts

The San Diego-based business litigation and criminal defense attorneys at LAWSTACHE™ LAW FIRM are experienced and dedicated professionals singularly focused on one goal: achieving the best results for our clients. Through our hard work and expertise, we guarantee all of our clients that we will diligently protect their rights and zealously pursue justice. Our clients deserve nothing less!

Can California and Nevada robbery REALLY NOT be a crime of violence under federal law?

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It is undisputed that §4B1.2(a)(2) (https://guidelines.ussc.gov/gl/%C2%A74B1.2) lists robbery as one of the possible predicated offenses, but the analysis does not end there. To determine whether a prior conviction qualifies as a crime of violence, the Court must use the categorical approach outlined in Taylor v. United States, 495 U.S. 575 (1990). First, the Court needs … Read more

San Diego Federal Court closure | Coronavirus (Covid-19) | Update for clients and public 3/17/2020.

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The District Court for the Southern District of California (Federal Court in San Diego and El Centro) issued a new order addressing concerns around the Coronavirus (Covid-19). The Court Order is linked below. All jury trials in civil and criminal cases in the Southern District of California are continued until April 16, 2020. Except as … Read more

Can you get pulled over for flipping off a cop? | CRUISE-GULYAS v. MINARD

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Fits of rudeness or lack of gratitude may violate the Golden Rule. But that doesn’t make them illegal or for that matter punishable or for that matter grounds for a seizure.

Minard, a police officer in the city of Taylor, Michigan, stopped Cruise-Gulyas in June 2017 for speeding. But he decided to show her leniency and wrote her a ticket for a non-moving violation. As she drove away, Cruise-Gulyas repaid Minard’s kindness by raising her middle finger at him. Minard pulled Cruise-Gulyas over a second time, less than 100 yards from where the initial stop occurred, and amended the ticket to a speeding violation.

Fourth Amendment. Under the facts set forth in the complaint, Minard violated Cruise-Gulyas’s right to be free from an unreasonable seizure by stopping her a second time. All agree that Minard seized Cruise-Gulyas within the meaning of the Fourth Amendment when he pulled her over the second time. Whren v. United States, 517 U.S. 806, 809–10 (1996). To justify that stop, Minard needed probable cause that Cruise-Gulyas had committed a civil traffic violation, id. at 810, or reasonable suspicion that she had committed a crime, United States v. Arvizu, 534 U.S. 266, 273 (2002). He could not rely on the driving infraction to satisfy that requirement. Any authority to seize her in connection with that infraction ended when the first stop concluded. Rodriguez v. United States, 135 S. Ct. 1609,1614 (2015).

First Amendment. Cruise-Gulyas also alleges that Minard violated her free speech rights by stopping her the second time in retaliation for her expressive, if vulgar, gesture. To succeed, she must show that (1) she engaged in protected conduct, (2) Minard took an adverse action against her that would deter an ordinary person from continuing to engage in that conduct, and (3) her protected conduct motivated Minard at least in part. Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc).

In his reply brief, Minard analogizes his case to a prosecutor who might reasonably think he could take a plea deal off the table if a defendant behaved offensively or a judge who might reasonably think that she could increase a defendant’s sentence if the defendant raised his middle finger at her right after she read her sentence from the bench. Judges, it is true, have wide latitude to consider expressive conduct during sentencing. See 18 U.S.C. § 3661; United States v. White Twin, 682 F.3d 773, 778–79 (8th Cir. 2012). But we need not wade through those complicated questions now because these facts differ materially. As alleged, the first stop had ended, a constitutionally significant event, before the officer initiated the second, unjustified stop. The Supreme Court has said that any justification for the first stop ceases when that stop ends. Rodriguez, 135 S. Ct. at 1614. These facts more closely resemble a prosecutor who tries to revoke a defendant’s deal a few days after everyone has agreed to it or a judge who hauls the defendant back into court a week or two after imposing a sentence based on the defendant’s after-the-fact speech. Those examples seem more problematic and more in keeping with today’s decision. Minard, in short, clearly had no proper basis for seizing Cruise-Gulyas a second time.

Full Opinion at http://www.opn.ca6.uscourts.gov/opinions.pdf/19a0043p-06.pdf

DEBRA LEE CRUISE-GULYAS v. MATTHEW WAYNE MINARD

Anton Vialtsin, Esq.
LAWSTACHE™ LAW FIRM | Criminal Defense and Business Law
https://lawstache.com
https://russiansandiegoattorney.com
185 West F Street Suite 100-D
San Diego, CA 92101
(619) 357-6677

Based in San Diego, CA
Licensed: California, Nevada, and Federal Courts

The San Diego-based business litigation and criminal defense attorneys at LAWSTACHE™ LAW FIRM are experienced and dedicated professionals singularly focused on one goal: achieving the best results for our clients. Through our hard work and expertise, we guarantee all of our clients that we will diligently protect their rights and zealously pursue justice. Our clients deserve nothing less!

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In United States v. Knapp, officers searched the defendant’s purse despite the fact that she was handcuffed behind her back, her purse was closed and three to four feet behind her, and three officers who were present had exclusive possession of the purse since cuffing the defendant.

The Fourth Amendment provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” In general, warrantless searches are per se unreasonable. Katz v. United States, 389 U.S. 347, 357 (1967). The warrantless search rule, however, is subject to several exceptions. One exception allows arresting officers to “search the person of the accused when legally arrested.” Weeks v. United States, 232 U.S. 383, 392 (1914).

Case law has developed to allow not only the search of the arrestee’s person, but also the area within the arrestee’s “immediate control.” Chimel v. California, 395 U.S. 752, 763 (1969). This authority is justified by the need to disarm the suspect and preserve evidence. United States v. Robinson, 414 U.S. 218, 234 (1973).

“Of the Person”
The Supreme Court has not clearly demarcated where the person ends and the “grab area” begins. The 10th Circuit resolves this question, and it holds that the better view is that a carried purse does not qualify as “of the person.” First, because of an arrestee’s ability to always access weapons concealed in her clothing or pockets, an officer must necessarily search those areas because it would be impractical (not to mention demeaning) to separate the arrestee from her clothing. Second, given that handheld containers such as purses are easily dispossessed, classifying such containers as potentially part of an arrestee’s person would necessitate unworkable determinations about what the arrestee was holding at the exact time of her arrest. Third, a holding to the contrary would erode the distinction between the arrestee’s person and the area within her immediate control.

“Immediate Control”
This question depends on whether the purse was within the area the arresting officers could “reasonably have believed . . . [the arrestee] could have accessed . . . at the time of the search.” Arizona v. Gant, 556 U.S. 332, 344 (2009) (emphasis added).

The 10th Circuit looked to the following factors to determine whether an area searched is within an arrestee’s grab area under Chimel: (1) whether the arrestee is handcuffed; (2) the relative number of arrestees and officers present; (3) the relative positions of the arrestees, officers, and the place to be searched; and (4) the ease or difficulty with which the arrestee could gain access to the searched area. United States v. Parra, 2 F.3d 1058,
1066 (10th Cir. 1993)

Full Opinion: https://www.ca10.uscourts.gov/opinions/18/18-8031.pdf

Anton Vialtsin, Esq.
LAWSTACHE™ LAW FIRM | Criminal Defense and Business Law
https://lawstache.com
https://russiansandiegoattorney.com
185 West F Street Suite 100-D
San Diego, CA 92101
(619) 357-6677

Based in San Diego, CA
Licensed: California, Nevada, and Federal Courts

The San Diego-based business litigation and criminal defense attorneys at LAWSTACHE™ LAW FIRM are experienced and dedicated professionals singularly focused on one goal: achieving the best results for our clients. Through our hard work and expertise, we guarantee all of our clients that we will diligently protect their rights and zealously pursue justice. Our clients deserve nothing less!

Reasonable Suspicion for Border Patrol to Stop a Vehicle on Interstate 8 | US v. Rodriguez

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The fourth amendment’s prohibition of unreasonable searches and seizures extends to seizures of the person, including the brief investigatory stop of a vehicle. U.S. v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 2578-79, 45 L.Ed.2d 607 (1975). The record indicates that the agents relied upon these factors in deciding to stop Rodriguez: –Interstate 8 … Read more