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Cops: Even conservative courts are limiting your searching authority

May 01, 2009 Cops: Even conservative courts are limiting your searching authority

Neither the Fourth Circuit nor the Virginia appellate courts are known as liberal hotbeds. That makes this week all the more sweet with the following two Fourth Amendment appellate victories from those courts:

Neely v. U.S., ___ F.3d ___  (4th Cir., April 29, 2009), confirms that defendant Neely only consented for the cops to search his vehicle’s trunk, but gave no consent to search any other part of his car. The court confirmed that the objective reasonableness test applies to police interpretation of consents to search. Here, the totality of circumstances did not show that Neely had given permission to search anything other than his trunk.

Neely also rejected the prosecution’s alternative argument that the police had reasonable articulable suspicion to pat down for a weapon. The court found no such reasonable articulable suspicion.

Raining on the parade somewhat is Neely’s following passage:

We acknowledge that this is a close case, and that several facts present here, under different circumstances, might counsel a different result. But Neely, unlike the defendants in Holmes and Elston, was not thought to be a member of a violent gang with an outstanding arrest warrant or an imminent violent threat based on a detailed 911 tip. There was no evidence or suggestion that Neely was armed. Moreover, Neely never hesitated or complained about following Tran’s orders, never became belligerent, never threatened, intimidated, or in any way suggested that he intended harm. He was not overly nervous or evasive. These factors, combined with Officer Tran’s testimony that Neely was free to leave at any time, render us unable to say that Neely’s actions or past behavior allowed Officer Tran to reasonably believe Neely was dangerous. he simple discovery of a weapon cannot, of course, create reasonable suspicion after the fact. As such, we are unable to find that Tran’s search of Neely’s vehicle was justified under Holmes.” Neely v. U.S.,

Meanwhile, on April 28, Virginia’s Court of Appeals reversed a conviction for a patdown that was not based on reasonable articulable suspicion. Thompson v. Virginia, ___ Va. App. ___ (April 28, 2009). The court proclaimed:

We are not prepared to conclude that one who loiters in an ‘open market for drug sales’ is automatically subject to a pat down. When there are no other relevant facts to suggest a person is involved in the distribution of drugs, such as a hand-to-hand transaction, contact with others, or maintenance of a ‘stash,’ we are compelled to conclude that the record does not support a reasonable basis for a weapons pat down.” Thompson v. Virginia.

The court reversed Thompson’s conviction even though the defendant was nervous when the police were talking with him starting a significant amount of time after they first approached him.

In just one week, my remaining discomfort about living so close to Virginia has ebbed.

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